author: Melvin, J.,

text:
    JOHN CLARKE DEAVER and FRANK DIGIOIA v. STATE OF MARYLAND
    [No. 632,
    September Term, 1975.]

      Decided. February 3, 1976.

    The cause was submitted on briefs to Morton, Melvin and Mason, JJ.
    Submitted by Michael J. Lambros for appellant Deaver. Submitted by Russell J. White and Robert N. Dugan for appellant Digioia.
    Submitted by Francis B. Burch, Attorney General, Gilbert

      Rosenthal, Assistant Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and Steven J. Scheinin, Assistant State’s Attorney for Baltimore County, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

On May 8, 1975, after a non-jury trial in the Circuit Court for Baltimore County, the appellants, John Clarke Deaver and Frank Digioia, were found guilty of armed robbery. In this appeal they contend the evidence presented to the trial judge was not sufficient to support the guilty verdicts. We agree and shall vacate the judgments of conviction.

The scope of our review in assessing the sufficiency of the evidence in a non-jury case is governed by Maryland Rule 1086 which plainly commands that we cannot reverse the judgments of the trial court on the evidence unless we find the judgments to be clearly erroneous. Szewczyk v. State, 7 Md. App. 597 (1969). The test as to whether the trial judge was clearly erroneous in reaching a guilty verdict is whether admissible evidence showed either directly, or circumstantially, or supplied a rational inference of, the facts to be proved from which the trier of fact could fairly be convinced beyond a reasonable doubt of the accused’s guilt of the offense charged, with due regard being given to the opportunity of the lower court to judge the credibility of the witnesses. Robinson v. State, 17 Md. App. 451 (1973).

The Evidence

Lillian Tenney, an employee of the Budget Bakery shop located on East Joppa Road in Baltimore County, testified that on Thursday, June 27, 1974, at approximately 5:00 P.M., “two young boys” entered the shop. One boy had a package of buns in his hands, “and he laid them on the counter”. The other boy “came around the counter behind me”, produced “a small gun” and said, “This is a holdup”. The boy with the gun then “went right to the desk, and right to the middle drawer — and he didn’t go through all the drawers — if he knew just what he was doing, and he opened the middle drawer, and we had a white envelope there where we keep our money from the register that we go down and get out money orders at the end of the day, and he just reached in and took the envelope and ran around the partition, and both of them took off.” $190.00 was in the envelope in “tens, twenties, fives and ones”. The extent of Mrs. Tenney’s description of the boys was that they “wore dungarees, tennis shoes”, and “both had hair down to their collars”, and the one without the gun “had large mirrored sunglasses on”. When shown a pair of sunglasses, she said they were “the same type”. The sunglasses were marked State’s Exhibit No. 1 “for identification only”. She testified to no other identifying details such as weight, height, color of hair or approximate ages of the “young boys”. She did not identify the appellants at the trial as the robbers.

The next witness for the State was Mary Elizabeth Joyces, between 10 and 12 years old, who testified that at approximately 5:00 P. M. on June 27, 1974, she was walking in Yakona Alley. Later testimony indicated the alley to be between one and two blocks from the Budget Bakery. She saw “two boys” run down the alley and heard one of them say, “Hit the gas”. One of them had a “light brownish” envelope in his hand. The two boys then got into the back seat of a green Volkswagen automobile. Two other “men” were already in the front seat of the Volkswagen and it drove off “rather fast”. One of “the two men” that ran down the alley was wearing mirror sunglasses. State’s Exhibit No. 1 for identification was the “same type”. The driver and the front seat passenger had “bigger sunglasses on”. Miss Joynes described the driver of the car as having “frizzy hair, like, like it was about came to right about here, and it was, like, frizzy. ...”

She testified to no other description of the four individuals she saw in the alley. She was asked by the prosecutor “to look around the courtroom, and tell the Court if you see any of the four men that you saw on June 27, 1974”. She responded, “Yes, I can, one of them” and pointed out the appellant Deaver. When asked, “ . . . [w]hich one of the four boys would he be?”, she replied, “I think he was the one who came running down the alley”. On cross-examination she was asked:

“Q. This offense occurred back on June 27th, 1974, almost a year ago. Since that time, have you seen any of these parties?

A. I thought I did, but I am not sure, really, sure”.

She further testified that she had been unable to identify any of the boys from “some pictures” shown her by the police, although she had “thought” she could identify one of them but she “wasn’t sure”. She was not asked which one she “thought” she could identify from the pictures.

Detective James Neuner of the Baltimore County Police Department testified that shortly before 8:30 P. M. on June 27, 1974, he arrested Deaver for the robbery. He was led to Deaver by the license number of the Volkswagen supplied to him by Miss Joynes. The car was registered in Deaver’s name. After being advised of his Miranda rights, Deaver told Detective Neuner and Sergeant Gary Witt of the Baltimore County Police Department “that he and another named subject, the other defendant, Digioia, were in the alley [where Miss Joynes saw the Volkswagen] waiting for two other boys, and that the two boys came running down to the automobile hurriedly, and said that ‘Let’s step on it, let’s go’ ”. Deaver and Digioia were “already in the car” when the two boys ran up to it. The police report indicated that at the time of his arrest Deaver had $17.41 in his possession, including one ten dollar bill and seven one dollar bills.

Sergeant Witt testified that Deaver told him that he and Digioia were in the alley in the parked car at approximately 5:00 P. M. on June 27, 1974, “and two subjects came down the alley, got into the car. Digioia told him to pick them up, and they proceeded on around the alley and out”.

Digioia was arrested shortly before 10:05 P. M. on June 27, 1974, at which time he had $27.00 in his possession — “two tens and seven ones”. At that time he denied being with Deaver in the alley, saying that although he had been with Deaver from 1:30 P. M. to 3:30 P. M. he “hadn’t seen Deaver anymore that day”. The next day, however, after consultation with counsel he gave a written statement to Detective Corporal Dennis Neugent of the Baltimore County Police Department. The statement was read into evidence without objection. The statement was as follows:

“I woke up, approximately, 12:00 or 12:30, and called Norman McDermitt around 12:45. I walked to Norman’s house, and stayed till around 1:15. Went home and ate lunch. About 1:30, Johnny Deaver and Norm and Chris and Mike drove up. We then went to Loch Raven Dam and drank beer till 3:45 to 4:15. We all left, and John Deaver dropped me off at my house. About 4:50 that evening, Chris and John and Mike came back to my house, drove up to Oakleigh Road and finished the beer. Chris said, “I’m going to get some money, be back in a minute,” while we were parked behind A & P on Joppa Road. Five minutes later, Chris and Mike came running back to the car saying, “Let’s get lost.” I then realized something was wrong, and I told Johnny to drop me off at my house. I arrived home about 5:15, and ordered one quarter barrel of beer from Rau’s; waited at my house until about seven until beer arrived; then went down to Norman’s house and drank until I was arrested.

Question: Did you have any idea that a holdup was planned?

Answer: No.

Question: Did you, yourself, participate in the holdup?

Answer: No.

Question: Do you know who Mike and Chris are?

Answer: No.

Question: Have you ever participated in a holdup or robbery before?

Answer: No.

Question: Have you told us everything you have been involved in?

Answer: Yes.

Question: Did you see or receive any money from the holdup?

Answer: No, I didn’t receive any money, but I saw an envelope with money in it.

Question: Describe Mike, Chris.

Answer: Yes. Both about five foot ten inches, dark brown hair. Mike has short brown hair. Chris has shorter length hair. Both about one hundred fifty pounds. Both wearing blue jeans. Mike had sunglasses.

Question: Did Deaver go right to the alley or did Mike and Chris tell him where to go?

Answer: Mike and Chris told him where to go.

Question: Did Mike or Chris ever mention the bakery?

Answer: No.

Question: Would you assume that Deaver had previous knowledge of where Mike and Chris were going to get the money?

Answer: No.

Question: Why?

' Answer: I don’t think it was ever mentioned in the conversation.

Question: Is there anything else you can add to this statement?

Answer: No.”

Maude Kieth testified on behalf of Digioia that she was working in the Budget Bakery at about noontime on June 27, 1974. She noticed four boys “in and out” of the shop at that time. They were all not in the shop at the same time. None of them were in the shop when she went behind the counter to the desk where she opened the desk drawer to change a twenty dollar bill for a woman customer. She said, “ . . . I opened the drawer, and that’s where we keep a brown envelope, well, it’s really a brown manila envelope, and we kept the money in a white envelope in the brown manila envelope, and that’s where I got change.” She was not present at the time of the robbery that took place five hours later in the day. She gave no description of any of the boys she saw other than they were dressed in dungarees and tennis shoes. When asked by Deaver’s counsel, “Miss Kieth, was Mr. Deaver one of the boys there, to the best of your recollection?”, she replied, “Uh-huh”. When asked by the prosecutor, “But you saw these boys coming in and out during that day, or the Deaver boy?” she responded, “Yes, he looks very familiar”. She was not asked to identify “Mr. Deaver” or “the Deaver boy” at the trial, nor is there any evidence of any extra-judicial identification by her of any of the boys.

Digioia took the stand to testify in his own behalf. At the time of trial he was twenty years old. His testimony confirmed generally his written statement to the police. He said the reason they parked in the alley was to drink beer, and that he had gone there on other occasions for the same purpose. Prior to June 27, 1974, he had known Deaver for three or four months. He did not know the last names of Chris or Mike and had not seen them before or after June 27th. When Chris said (while they were parked in the alley), “I’m going to get some money, be back in a minute”, he “figured he was going home to get some money”, but when Chris and Mike returned to the car and said “Let’s get lost”, he “thought it was a little suspicious”. Digioia denied any knowledge of or participation in the robbery of the bakery shop. He said the $27.00 he had at the time of his arrest was money he earned from his employment as “a spreader and a machine operator”. He had no prior criminal record. At the time of his arrest on June 27th, he was “rather drunk”. On the other hand, the arresting officer testified that he “wouldn’t say” Digioia was “pretty drunk” when arrested.

Deaver also testified in his own behalf. He was twenty years old at time of trial. His testimony also essentially conformed to his oral statement to the police. It differed from Digioia’s statement in that he denied that “Mike” or “Chris” was in the car when he and Digioia drove to the alley to finish off the beer they had purchased earlier. He agreed with Digioia that Chris was with them and Norman McDermitt earlier in the day while drinking beer. But he disclaimed any recollection of a “Mike” being with them at any time that day. He thought Chris was a friend of Norman McDermitt. While Deaver and Digioia were drinking beer in the Volkswagen parked in the alley, “two guys did come up to the car”. He did not know who they were. He testified: “ . . . I’m not sure how they got in the car. I thought they had asked Frank for a ride .... But I’m not quite sure how, what Frank said to them, but we did give them a ride”. He denied any knowledge of or participation in the robbery of the bakery shop. He also denied being in the bakery shop at any time that day, saying, “I went in that bakery one time about two or three years ago, and that’s the only time I can recall ever going in that bakery”. At the time of his arrest he had been “laid off” his regular job with a drywell contractor and was working for himself repairing walls for an apartment complex on a part time basis. He further testified that at the time of his arrest he was on probation for his part in an armed robbery of a gasoline station. He had no other criminal record.

The State’s Theory of Guilt

In finding appellants guilty the trial judge stated no findings as to any underlying facts or otherwise gave any reasons for the verdicts. The State argues, however, that the appellants’ presence seated in Deaver’s automobile within two blocks of the robbery, and their “flight from the scene of the crime”, together with the “totality of the circumstances”, supports a finding of their guilt beyond a reasonable doubt. Apparently, the theory is that appellants were principals in the second degree, in that although they did not actually rob the bakery shop they were constructively present at the scene of the robbery because they operated what the State contends was the “get-away” car.

The fatal flaw in the theory is total lack of proof that the “two young boys” who robbed the Budget Bakery shop at 5:00 P. M. are the same “two boys” or “two men” whom young Miss Joynes saw enter Deaver’s car in the alley. It will be recalled that Miss Joynes testified to no description whatsoever concerning the two individuals — other than that one of them wore sunglasses and one had a “brownish envelope” in his hand. It will also be recalled that the victim, Mrs. Tenney, said the “two young boys” who robbed her wore dungarees and tennis shoes, one of them wore sunglasses, and “both had hair down to their collars”. Digioia said one of the individuals they picked up in the alley had “short brown hair” and the other “shorter length hair”, both wore “blue jeans”, and one “had sunglasses”. Thus, the only common descriptive elements were the dungarees (blue jeans) and sunglasses. The evidence that one of the robbers took a white envelope of undetermined size and that one of the individuals seen in the alley (between one and two blocks from the bakery shop) had a “light bro'umish” envelope of undetermined size, if anything, negates identification. With regard to clothing, it is common knowledge that blue jeans (or dungarees) are currently worn by the younger members of our society as the accepted “uniform of the day” on all but the most formal occasions. Such clothing, alone, can hardly be used to distinguish one young person from another, especially in the absence of any evidence of distinguishing features of the particular blue jeans involved, such as holes, patches, floral designs, fading, etc.

As to the sunglasses, here again we do not think they can serve to identify the “young boys” who robbed the bakery shop as the same individuals in the alley. Wearing sunglasses at 5:00 P. M. on June 27th (one of the “longest” days of the year) is certainly not unusual. In the absence of other identification the fact that one of the robbers wore the “same type” sunglasses as those worn by one of the persons in the alley is not helpful to the prosecution’s case. State’s Exhibit No. 1 for identification (the sunglasses shown both Mrs. Tenney and Miss Joynes at trial) were never actually offered as an exhibit. Technically, therefore, the trial judge should not have considered them. He undoubtedly saw them, however, when they were shown to the witnesses, and they are included in the record before us. There is no evidence of anything unique or unusual about them, or that they were not readily available to any member of the buying public.

On the record before us, we hold that the evidence is legally insufficient to warrant a finding that any of the individuals seen in the alley by Miss Joynes were the actual perpetrators of the armed robbery of the bakery shop. That being so, the appellants could not be guilty, as either principals or accessories, of aiding or abetting them. It is no crime to aid or assist someone unless it is shown by substantial evidence that, with the knowledge of the one rendering the assistance, the person assisted has perpetrated or is perpetrating a criminal act. The fact that appellants told somewhat conflicting stories of the identity or non-identity of the individuals they drove from the alley, or that one- of the appellants became “suspicious” of the circumstances, does not, alone, supply that evidence.

It follows from what we have said that the only evidence against the appellants is their presence in the general vicinity of the scene of the crime and their hurried departure therefrom. Such evidence, standing alone, is not enough to support the guilty verdicts. Tasco v. State, 223 Md. 503 (1960); Spencer v. State, 1 Md. App. 264 (1967); Derricks and Hilgeman v. State, 9 Md. App. 261 (1970); Williams v. State, 3 Md. App. 58 (1961).

Viewing the evidence as a whole, we think the remarks of Judge Gilbert, speaking for this Court in Craig v. State, 14 Md. App. 515, at 520, are particularly appropriate to the present case:

“We think that the finger of suspicion may well point toward the appellants], but suspicion is not the basis upon which conviction may be predicated”.

We hold that the judgments of conviction were clearly erroneous on the evidence. Md. Rule 1086.

Since we “cannot determine from the record whether or not additional probative evidence can be produced on a retrial”, we shall, “as the interests of justice appear to require it”, vacate the judgments and remand the case with directions to the trial court to enter judgments of acquittal, unless the State within ten (10) days of the date of our mandate satisfies the trial court that it can produce additional probative evidence of guilt that will warrant a retrial. If the State does preliminarily so satisfy the Court, a new trial may be held according to Gray v. State, 254 Md. 385 (1969), as to either or both of the appellants.

Judgments vacated and case remanded for further proceedings not inconsistent with this opinion.

      . Appellants were charged as principals and not as accessories. Any proof that they were merely accessories before or after the fact to armed robbery would not have sustained their convictions as principals. Agresti v. State, 2 Md. App. 278 (1967).

        . We recognize that such a retrial could pose a serious question of double jeopardy. See Benton v. Md., 395 U. S. 784 (1969); Sapir v. U. S., 348 U. S. 373 (1955). We note that although Benton v. Md., supra, was decided one week before Gray v. State, supra, it was not mentioned therein. Benton held that Federal double jeopardy standards are applicable to state criminal prosecutions.


source: Caselaw Access Project

author: Mason, J.,

license: Public Domain

text:
    HILDA REITZICK v. ELLEN REALTY, INC. t/a Liberty West Apartments
    [No. 102,
    September Term, 1975.]

      Decided February 26, 1976.

      The cause was argued before Morton, Powers and Mason, JJ.

      Harry Goldman, Jr., for appellant.

      James L. Mann, Jr., with whom were Merriman, Crowther & Mann on the brief, for appellee.
   Mason, J.,

delivered the opinion of the Court.

This appeal arose from a suit for damages in Baltimore City Court (Sodaro, J.), for injuries sustained by the appellant, Hilda Reitzick. In the early hours of November 14, 1968, she slipped and fell on the sidewalk leading to her apartment, which she shared with her brother in the Liberty West Apartments, owned and operated by appellee, Ellen Realty, Inc. At the close of appellant’s case, the appellee moved for and was granted a directed verdict in its favor. Appellant contends here that she did present a sufficient case of primary negligence against her landlord, and that the case should have been submitted to the jury.

In considering a motion for directed verdict in favor of the defendant at the close of plaintiffs case, the trial judge must assume the truth of all credible evidence and of all inferences fairly deducible therefrom in a light most favorable to the plaintiff. The trial judge must submit the case to the jury “if there is any evidence, however slight, legally sufficient as tending to prove negligence, the weight and value of such evidence being left to the jury.” Curley v. General Valet Service, 270 Md. 248, 264, 311 A. 2d 231 (1973).

The evidence adduced by the appellant established that slightly more than three inches of snow had fallen on November 12, 1968. The testimony of the apartment complex’s resident manager (who lived across the street from appellant) indicated that the standard operating procedures for plowing and salting each sidewalk had indeed been carried out after this particular snowfall. Appellant admitted that the snow had been cleared from the sidewalk when she left for work the following morning at 8 a.m., and that she encountered no difficulty at that time. Her testimony indicated that the snow had been piled along the sides of the walkway. Upon her return home in the early hours of November 14, she slipped and fell while stepping onto the sidewalk. She described the sidewalk as a “sheet of glass”, although she apparently did not notice this condition until after she fell, as she had assumed the sidewalk was clear. She suffered injuries necessitating hospital care as a result of the fall.

Appellee contends the above is insufficient to constitute a prima facie case of negligence against the property owner, because there was no evidence as to when or how the ice had formed. Appellant’s brother testified that he had arrived home that evening sometime after dark, and that he had no recollection of the sidewalk being slippery at that time. Also, no evidence was offered as to the grading or drainage pattern of the premises.

A landlord in Maryland has the duty to exercise reasonable care to protect tenants from injuries resulting from ice upon the common approaches to apartment buildings. Langley Park Apts. v. Lund, Adm’r., 234 Md. 402, 199 A. 2d 620 (1964). However, the plaintiff must ordinarily show that the landlord had actual or constructive notice either of the presence of ice and snow in the common way, or of the existence of a dangerous condition in the premises likely to work injury by causing such an accumulation. Thus, the Court of Appeals in Lund analyzed the landlord’s duty as follows:

“We do not mean to suggest that the mere fact that snow has accumulated will in and of itself result in a liability upon the landlord, for that would make him virtually an insurer. . . . [Liability] may result .. . provided ... [the landlord] knew, or in the exercise of reasonable care should have known, of the existence of a dangerous condition and failed to act within a reasonable time thereafter to protect against injury by reason of it. ” (Emphasis added) 234 Md. at 409-10.

See generally 49 A.L.R.3d 387 (1973). In Lund, there was testimony that the management had not removed snow from three days before, and that the walks were “slushy” some 3-V2 hours before the fall. The management stated the snow had been removed. The Court affirmed a jury verdict for the plaintiffs. In Honolulu Ltd. v. Cain, 244 Md. 590, 224 A. 2d 433 (1966), the owner of a shopping center was held liable where an invitee was injured when she slipped on ice which had formed on the parking lot surface. The evidence indicated snow had been piled in a corner of the lot away from existing drains. The lot was graded so that the water ran completely across the lot. The plaintiff slipped on a ribbon of ice which had formed only fifteen to twenty minutes before the accident. The Court of Appeals stressed the necessity of showing actual or constructive knowledge of the dangerous condition:

“We hold, however, that knowing of this drainage pattern, and knowing that on cold February evenings water is likely to freeze, the defendant properly could be held to have acted unreasonably and negligently in permitting its snow removal service to pile snow at the end of the parking lot diagonally opposite from the drains.. ..
Secondly, having knowledge of the dangerous condition it had created, the defendant could have been held to have been also negligent in not sanding or salting the wet area formed by the melting snow. . . .” 244 Md. at 596-97.

In stark contrast to the constructive knowledge of the landlords in Lund and Cain, the case before us contains no evidence of insufficient snow removal or prior dangerous conditions (as in Lund), or of any peculiar grading or other physical attribute of the area which could suddenly engender a dangerous condition (as in Cain). This case is similar to cases where the dangerous condition was created by some unknown party, without the actual or constructive knowledge of the owner. In Lexington Market Auth. v. Zappala, 233 Md. 444, 197 A. 2d 147 (1964), the plaintiff fell on an oil or grease patch, and no evidence was offered as to the time or cause of its origin. The Court of Appeals held that the evidence was insufficient to submit it to a jury. See also Rawls v. Hochschild, 207 Md. 113, 113 A. 2d 405 (1955) (mere presence of water on a store’s stairway insufficient to warrant inference of its discovery by exercise of ordinary care).

Appellant argues that the jury could infer actual or constructive knowledge because of an inference that a reduction in the size of the apartment complex’s maintenance crew led to inefficient performance of the reasonable care duty. However, appellant herself offered affirmative proof through the testimony of the resident manager that this particular snow removal work had been performed properly. There was no evidence that this ice existed prior to her fall. In addition, appellant and her brother testified that the walkway was clear in the morning, and her brother also testified that he had no recollection that the sidewalk was slippery when he had walked on it approximately four hours before her fall. This evidence (or lack of it) rendered any slight inference created by the maintenance crew size to be not “fairly deducible”. See Curley v. General Valet Service, supra. In the absence of any evidence tending to show a prior icing condition, or a dangerous physical attribute of the accident scene which might create such a condition, the plaintiff (appellant) did not meet her obligation to offer proof to establish that the landlord had actual or constructive knowledge of the icing condition. Thus, the trial judge properly withheld the case from the jury.

Judgment affirmed.


author: Davidson, J.,

text:
    MILTON R. FELGER v. ZANE GRAY NICHOLS
    [No. 449,
    September Term, 1975.]

      Decided February 26, 1976.

    The cause was argued before Powers, Gilbert and Davidson, JJ.

      Alan Hilliard Legum for appellant.

      William A. Franch and Joseph P. Manck, with whom were Goldsborough & Franch on the brief, for appellee.
   Davidson, J.,

delivered the opinion of the Court.

On 19 February 1975, in the Circuit Court for Anne Arundel County, the appellant, Milton R. Felger, filed this action against the appellee, Zane G. Nichols. On 12 May 1975, Judge Karl F. Biener granted the appellee’s motion for summary judgment in open court. On 12 May, Judge Biener signed a document which read in pertinent part: “Motion for Summary Judgment Granted.” A note stapled to this document said: “Counsel will prepare order.” A docket entry showed that the motion for summary judgment was granted. No judgment was entered or noted on the docket. On 5 June 1975, an order for appeal was filed.

Generally an appeal may be taken only from a final judgment. Here the appeal was taken from the grant of a motion for summary judgment.

Maryland Rule 610 d 1 requires that when a motion for summary judgment is granted, the “judgment sought shall be rendered forthwith.” This rule establishes that the grant of the motion is nothing more than a determination that the moving party is entitled to a judgment. It does not itself constitute the entry of final judgment.

In our view, the grant of such a motion is analogous to the grant of a motion for a directed verdict. There is no right of appeal from the grant of a motion for a directed verdict.

We hold that there is no right of appeal from the grant of a motion for summary judgment. Accordingly, this appeal is premature. We shall dismiss.

Appeal dismissed.

Costs to be paid by appellant. Mandate to issue forthwith.

      . Md. Ann. Code (1974) Courts & Judicial Proceedings § 12-301; Eastgate Associates v. Apper, 276 Md. 698, 700-701, 350 A. 2d 661, 663-664 (1976); Shipp v. Autoville Ltd., 23 Md. App. 555, 559, 328 A. 2d 349, 352 (1974). For a listing of exceptions, see Courts & Judicial Proceedings § 12-303.

      . Dowling v. Jensen, 171 N.E.2d 107 (Ill. App. 1960); see 49 C.J.S. Judgments § 227, at 433 (1947); but see Subsequent Injury Fund v. Howes, 11 Md. App. 325, 335, 274 A. 2d 131, 136 (1971).

      . See Lynx, Inc. v. Ordnance Products, Inc., 273 Md. 1, 8, 327 A. 2d 502, 509 (1974); Knisley v. Keller, 11 Md. App. 269, 272-73, 273 A. 2d 624, 625, cert. denied, 261 Md. 726 (1971).

      . Eastgate Associates Inc. v. Apper, supra, 276 Md. at 701-702, 350 A. 2d at 664 (1976).


author: Lowe, J.,

text:
    BESSIE LOUISE JOHNSON v. STATE OF MARYLAND OSCIE WALKER JOHNSON v. STATE OF MARYLAND
    [No. 573,

    September Term, 1975.]
    [No. 575,
    September Term, 1975.]

      Decided February 26, 1976.

      The cause was argued before Morton, Gilbert and Lowe, JJ.

      Theodore A. Miller and David L. Prestemon for appellants.

      Arrie W. Davis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Steven A. Shaw, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

“The precise question in this case, then, is what must the prosecution prove to demonstrate that a consent was ‘voluntarily’ given.” Schneckloth v. Bustamonte, 412 U. S. 218, 223.

Oscie Walker Johnson and his wife, Bessie Louise Johnson, were convicted by a jury of the Circuit Court for Montgomery County of possession of heroin in an amount sufficient to indicate an intent to distribute it. The heroin and paraphernalia were found in their Montgomery County apartment as the result of a search by police officers. The search of appellants’ apartment and the subsequent seizure of the evidence found therein, which piovided the basis for appellants’ convictions, was predicated upon a consent given by Oscie Johnson immediately prior to the search while in custody.

The circumstances of Oscie Johnson’s arrest, less than an hour before his consent was obtained, is an important factor in the “totality of all the circumstances” by which the voluntariness of the consent is to be determined, Schneckloth, supra, 412 U. S. at 227. However, contrary to appellants’ assertion, the illegality of an arrest does not itself make all consents resulting therefrom involuntary. Cf. United States v. Watson, 423 U. S. 411, 18 Cr. L. 3051; Whitman v. State, 25 Md. App. 428. The legality or illegality of a custodial holding is but one element to be considered in determining the voluntariness of the consent. More determinative of the question are the actual circumstances surrounding the arrest. A custodial consent derived from a telephone request to an accused asking him to come to a police station and submit voluntarily to police custody, is far less suspect than a consent resulting from an arrest at gun-point by several carloads of police officers armed with shotguns. Whether either arrest was legal or illegal is a factor in the equation, but the “heightened possibilities for coercion”, Schneckloth v. Bustamonte, 412 U. S. at 240, n. 29, derive more from the particular custodial atmosphere than from whether the arrest conformed to the technical standards of legality. The Wong Sun doctrine that the illegality of the arrest poisons its fruits may affect the flavor of the consent, but does not render it poisonous in all circumstances. Wilson v. State, 30 Md. App. 242 (1976).

It is hard to imagine a more coercive atmosphere than appears from the facts of the instant case. While under surreptitious surveillance by four plainclothes officers in two unmarked police cars, Oscie Johnson and an associate left his Montgomery County apartment about midnight and entered his automobile. They drove into Prince George’s County on East-West Highway followed closely by the two unmarked police cars. When appellant stopped at a red traffic light, one police car pulled behind him and the other next to him. Two officers in plainclothes armed with shotguns started out of their cars toward Johnson’s car. Johnson accelerated rapidly although the signal was still red and the unmarked cars, joined by a marked police car, followed him through the intersection. They apprehended him within fifty yards. Johnson was covered by shotgun wielding officers at the front and side windows of his car. He and his associate were taken from the car, forced to assume the customary spread-eagle position and searched. Suspected narcotics were found on Johnson and in his car.

Appellant’s hands were then manacled behind his back and he was placed in the back seat of a police car. Three or four officers were in the vehicle with him and others, including uniformed officers, remained outside. Within fifteen minutes of his arrest, appellant verbally consented to a search of his apartment. Plainclothes State policemen were summoned to the scene. Upon arrival, between thirty and forty-five minutes later, one State policeman entered the car with a written consent form and asked appellant if he would sign it. After receiving an affirmative response, he advised appellant that if more narcotics were found in his home they would be used to bring charges against him in Montgomery County. The State policeman in charge of the case also advised appellant that he could withdraw his consent at any time. Johnson’s handcuffs were unlocked, so he could sign the consent form, and then refastened.

The procession of police vehicles then proceeded to the Johnson’s home. When they arrived there, Oscie explained to his wife that he had consented to a search of the premises. The two Johnsons were seated on the sofa and, at Bessie Johnson’s request, were permitted to be joined by their young daughter. The search revealed substantial narcotics and paraphernalia.

Appellant’s testimony differed little from that given by the police officers. His descriptions were more varied and certainly more detailed. Although Oscie Johnson was not able to say specifically which officer did what, he did testify that the two officers who apprehended him identified themselves as “Batman and Robin.”

“Q Do you recall which officer went around to the passenger side of the car?

A No. All I was looking at was at the shotgun. I wasn’t looking at the officers.”

His detailed recollection of the arrest was not rebutted, but might have been disbelieved by the trial judge. He testified that when he was stopped after going through the red light:

“A Two officers jumped in front of my car, and I saw them. I guess they cocked the shotguns, pointed them directly at my windshield, and I put my hands up.

Q What was said at that time?

A They walked around to the side of the car and they asked me, told me to get out of the car. The car wasn’t in park and I was scared to move my hands to put it in park.

Q Is that what you said to them?

A Yes.

Q What did they say?

A They reached in and put it in park.

Q Then what happened?

A I proceeded to get out of the car.

Q Were there any guns pointed at you at this time?

A Yes.

Q What kind of guns?

A Revolvers and two or three shotguns.

Q How close was the closest shotgun to your head?

A A shotgun was on my neck.

Q Literally on your neck?

A Touching my neck, both of them.

Q What did you do then?

A He asked me to run and, well, the shotgun was pointed at my head. The officer that just testified said, ‘This is a hairpin trigger I got. You can breathe hard if you want to.’ I asked him to remove the shotgun from my head.

Q Then what happened?

A The officer standing across from me with the pistol on the other side of the car, the officer across the car, the officer behind me, I don’t know how many were behind me, that is about it.

Q Well, all right, did you have your hands on the car?

A Yes.”

He admitted that he was advised fully of his rights in accordance with Miranda v. Arizona, 384 U. S. 436, and warned that he need not consent to the search of his home. However, he denied being told he had the right to be taken to a court commissionér forthwith to be formally charged. When asked why he consented, he assigned various reasons, two of which he articulated upon cross-examination:

“Q You consented to the search because you didn’t think they would find anything?

A I knew they wouldn’t find anything.

Q That is the reason you signed the form, though; isn’t that right? You didn’t sign it because you figured they would kick the door down?

A They said they would kick the door down.

MR. DONOHUE: I object.

MR. SHAW: If I can finish the sentence, that is all I am trying to do.

THE COURT: Re-state your question.

BY MR. SHAW:

Q You didn’t sign the consent form because you thought they were going to kick down the door anyway; that is not the reason?

A That is one of the reasons. I misunderstood your question.

Q That was your reason?

A That was one of the reasons.

Q How many reasons did you have?

A For one reason, I knew there weren’t any narcotics in my house. It didn’t make any difference whether I signed it or not, I had my girl there, little girl there and I didn’t want them kicking down the door.

Q How many reasons did you have for signing it?

A I didn’t see any reason not to.”

It was upon this testimony that the trial judge denied appellants’ motions to suppress. The court stated:

“In any event, considering all the facts presented at the suppression hearing, and following the guidelines set down in the Schneckloth and Lopata [18 Md. App. 451] cases, the Court finds that the consent of defendant Oscie Johnson to search the premises at 7406 Hancock Avenue was freely and voluntarily given and the subsequent search and seizure of evidence was valid.”

In Whitman v. State, 25 Md. App. 428, we adopted the procedure prescribed by United States v. Hearn and Taylor, 496 F. 2d 236 (6th Cir.), of isolating the factors of coercion and non-coercion and placing them in juxtaposition in order to determine the voluntariness of a consent search. The elements of coercion in the case at bar completely counterbalance the non-coercive acts of the police. The fact that appellant admitted he was given his Miranda warnings and told he had the right to refuse consent to the search of his home are certainly non-coercive factors. See Schneckloth v. Bustamonte, supra, 412 U. S. at 226. We add to the positive side of the scale the trial judge’s finding that appellant saw no reason not to consent because there was nothing to find. We do not regard these factors as so compelling as to outweigh the melodramatic atmosphere of Johnson’s midnight apprehension at gun-point followed by his confinement to the back seat of a police car with his hands manacled behind his back. Nor do we believe that the time period between the first verbal consent and the written consent signed while still in the same atmosphere (though not then at gun-point) vitiated the appalling circumstances of Johnson’s arrest so as to add any weight to the non-coercive side of the scale. If the totality of these circumstances are not coercive, we can find little meaning in the test espoused in Schneckloth v. Bustamonte, supra, that:

“ . .. whether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.” Schneckloth v. Bustamonte, 412 U. S. at 227.

Who Decides Voluntariness

Because we shall remand for a possible new trial, we feel compelled to respond to another of appellants’ tangential complaints. Appellants argue that the same procedure should be used in determining the voluntariness óf a consent to search as in determining the voluntariness of a confession. The procedure used when the latter is at issue is that:

“. . . the court has the preliminary decision whether or not the confession was voluntary and the trier of facts has the final determination. . . .” Barnhart v. State, 5 Md. App. 222, 223.

Although appellants’ argument is beguiling, the application of such a procedure to the consent to search issue' has not been accepted by this Court, nor by the Court of Appeals since the adoption of Md. Rule 729. Prior to that rule’s adoption, however, in Hubbard v. State, 195 Md. 103, 107, the Court of Appeals spoke directly to this question.

“In a case like this, where the traverser testifies that the search was made over her objection, and the police officers testify that she permitted them to make the search, whether the fruits of the search should go to the jury is in the first instance a matter for the court. If the court is of the opinion that the accused freely and voluntarily consented to the search, and there was no coercion or fear brought to bear upon the traverser by the police, the matter should be submitted to the jury, and it is then for the jury to say, on all the facts, whether the traverser waived her right she might have to object to the search.”

See also Payne v. State, 207 Md. 51, 54-55 and Wilson v. State, 239 Md. 245. Hubbard was decided on April 14, 1950, before the Supreme Court had ruled that the Fourth Amendment guarantee against unreasonable searches and seizures was applicable to the states through the due process clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U. S. 643 (1961).

In June of 1965, the Court of Appeals, relying on Hubbard and Payne, both supra, held in Wilson v. State, 239 Md. 245 that counsel was entitled to argue to the jury the question of voluntariness of a consent to search (as well as the legality of an arrest).

“We think the judgment must be reversed because the trial judge erred when he prevented defense counsel from arguing to the jury the questions whether the appellant had voluntarily consented to the searches and seizures, or whether his apparent acquiescence had been induced by an unlawful arrest. Whether these were questions of law or of fact, or a combination of both, they were within the domain of the jury and counsel was entitled to discuss the facts relative thereto and inform the jury of the applicable law.” Id. at 254.

Thereafter, in June of 1967, the Court of Appeals adopted Md. Rule 729 to clarify for bench and bar the procedure to be followed in cases wherein the question of the legality of a search and seizure is raised. That rule, pertinent to the issue here, provides as follows:

“a. Scope.
This Rule shall be applicable whenever property is claimed in a court to have been obtained by an unlawful search or seizure even though the offense charged or threatened to be charged may not be within the exclusive jurisdiction of a court or even though the search warrant, pursuant to which the property was seized, may not have been issued by a court,
b. Venue.
1. After Indictment.
When an indictment has been filed in a court or after a defendant has been held for the action of the grand jury and property seized may be used as evidence at the trial, a motion for the suppression, exclusion or return of such property on the ground that it was obtained by an unlawful search or seizure, shall be filed in the court having criminal trial jurisdiction.
g. Binding Effect of Pre-Trial Ruling.
2. Where Denied.
If such motion or petition is denied prior to trial of the criminal case, the pre-trial ruling shall be binding at the trial unless the trial judge, in the exercise of his discretion grants a hearing de novo on the defendant’s renewal of his motion or objection. A pre-trial ruling, denying a motion or petition to suppress, exclude or return .property seized, shall in any event be reviewable on appeal to the appropriate appellate court or on a hearing on a motion for a new trial.”

Two years later, in 1969, we held in Price v. State, 7 Md. App. 131, 143, that the admissibility of evidence obtained by a search and seizure warrant claimed to be invalid was a matter exclusively for the court by virtue of Md. Rule 729. In that same year, in Cleveland v. State, 8 Md. App. 204, 211, we extended Price by holding that Rule 729 applies not only to evidence seized under a warrant but to any evidence obtained by search or seizure and, therefore, the admissibility of evidence obtained by any search or seizure claimed to be invalid is a matter exclusively for the court and should not be submitted to the jury. In explaining the rationale of this holding, however, Judge Orth (who had also written Price) referred to Hubbard, supra, and remarked:

“Thus Hubbard applied as to the disputed consent to a search the same rule followed as to the disputed voluntariness of a confession and it may well be that the two issues are comparable. Each in the ultimate is a factual determination whether the accused acted freely and voluntarily.” Cleveland, 8 Md. App. at 211.

Although in Cleveland we expressly declined to decide the impact of Rule 729 on the holding of Hubbard, Payne and Wilson as to the respective functions of the court and jury on the question of a consent to a search, we questioned their holdings and at the same time declared our opinion that in light of Rule 729 Wilson was no longer the law regarding the question of legality of an arrest to the extent that arrest related to admissibility of evidence seized. No other case in Maryland has since raised the question or discussed the issue of whether voluntariness of consent was a court and/or a jury question.

Clasping at the comment in Cleveland appellants argue that because Schneckloth uses the same standard to determine both voluntariness of consent to search and of confessions, the same procedure should be followed as to each, i.e., a preliminary determination of voluntariness by the court and the ultimate decision by the jury using its “beyond a reasonable doubt” standard. This reasoning is persuasive but not sound since a similar paradigm may apply for the opposite view. As pointed out in footnote 6 of Schneckloth, the Supreme Court also uses the same test of voluntariness for a guilty plea as it does for a confession. See Brady v. United States, 397 U. S. 742, 749. Yet the voluntariness of a guilty plea is necessarily determined solely by the judge before he accepts it. Holloway v. State, 8 Md. App. 618, 620; McCall v. State, 9 Md. App. 191, 195.

We are not convinced that the Court of Appeals intended to exclude consent searches from the purview of Md. Rule 729. In every other instance the authority to conduct the search, e.g., warrant, arrest, plain view, stop and frisk, etc., is at the very heart of the question of admissibility. Cf. Wilkins v. State, 11 Md. App. 113, 116-117. We see nothing in Md. Rule 729 to indicate that the Court of Appeals intended that it not apply to consent searches. The reasoning behind the rule as set forth in Cleveland v. State, 8 Md. App. at 209-211, applies to the issue of admissibility of evidence, however obtained, and answers directly the similar standards argument posed by appellants:

“It may appear, at first glance, that the question of the legality of a search or seizure is comparable to the question of the voluntariness of a confession and that since the ultimate determination of the voluntariness of a confession is for the jury, so should the ultimate determination of the legality of a search or seizure. But we noted in Price, at 143, that the matter of the admissibility of evidence claimed to have been unlawfully seized is to be distinguished from the question of the admissibility of a confession, where the question of its voluntariness is first determined by the court and upon being found voluntary and thus admissible, the evidence as to its voluntariness is then submitted to the jury. See Barnhart v. State, 5 Md. App. 222. This is so because of the fundamental difference between a confession and evidence obtained by a search and seizure. The weight to be given any evidence, be it a confession or otherwise, is for the trier of fact. Even if a confession is ruled by the court to be prima fade voluntary and thus admissible, it is the function of the jury whether or not to believe it. Day v. State, 196 Md. 384, 399. The voluntariness of the confession is an indispensable factor in the determination of whether or not it is to be believed. Its integrity would be seriously affected were it obtained by coercion or threat, or improper inducement or without the assistance of counsel whose presence was not properly waived. Thus, in order for the jury to give weight to a confession, that is to ascertain whether it was true, so as to properly consider it in arriving at the guilt or innocence of the accused, they must have before them the evidence as to its voluntariness. Because the voluntariness of a confession is essential to the jury’s function in ascertaining guilt or innocence even when it is properly submitted to them, its voluntariness is a question of fact to be found by the jury beyond a reasonable doubt before they may consider it. Barnhart, v. State, supra, at 225. In other words the voluntariness of a challenged confession is an essential element of the State’s case and must be established by it beyond a reasonable doubt once the confession is shown to be admissible by prima fade proof that it was voluntary. On the other hand, the integrity of evidence obtained by a search and seizure is not affected by the reasonableness vel non of its seizure. Once the trial court has found it to be admissible (this finding upon proper challenge is reviewable on appeal, Md. Rule 729 f), whether or not it was seized under a valid search warrant, or incident to a valid arrest or by a search and seizure otherwise reasonable, plays no part in the weight to be given it. The reasonableness of the search or seizure by which evidence was obtained is not an essential element in arriving at guilt or innocence; the resolution of the question of reasonableness merely determines whether the evidence shall or shall not be submitted to the jury and once this is determined by the court there is nothing for the jury to consider with regard to its admission. Thus the reasonable doubt standard is not applicable; the rule of probable cause in determining the legality of a search or seizure is, as the term indicates, one of ‘probability.’ See Hall v. State, 5 Md. App. 394, 396-398; Gaudio and Bucci v. State, 1 Md. App. 455, 463-464. In short, the validity of a search or seizure relates only to the admissibility of the evidence obtained thereby and is no more for the determination of the jury than are other matters pertinent to the admission or exclusion of evidence otherwise obtained. Therefore, that the jury judge the law as well as the facts, plays no part, just as it plays no part in the determination of the admission of any other evidence. (Footnotes omitted).

The trial judge was correct in not submitting the question of consent to the jury. We hold that “whenever” suppression is sought based on the illegality of a search and seizure, consensual or otherwise, the question of admissibility and all tangential questions related thereto are exclusively for the court. It need hardly be added that he need only be convinced by a preponderance of the evidence that the consent to seize was voluntarily given in order to admit the evidence.

Mandate

We conclude as did Judge Moore in Whitman, supra, 25 Md. App. at 457:

“Additional probative evidence with respect to the legality of the search may be available to the State. Therefore, we shall remand for a new trial. Upon remand, the State will bear the burden of demonstrating to the satisfaction of the lower court that it can produce additional probative evidence. Such evidence shall be presented within such time as may be authorized by the lower court. If the lower court is satisfied with the presentation by the State, it shall hold a new trial; if not, it shall enter a judgment of acquittal. See Gray v. State, 254 Md. 385, 255 A. 2d 5 (1969); Smith v. State, 8 Md. App. 163, 258 A. 2d 755 (1969).”

Judgments reversed; case remanded for a new trial; costs to be paid by Montgomery County.

      . Wong Sun v. United States, 371 U. S. 471.

      . Since this appeal, the question of the retroactivity of Everhart v. State, 274 Md. 459, and Brown v. Illinois, 422 U. S. 590, 45 L.Ed.2d 416, applying Wong Sun, supra, to Maryland has been decided by this Court. In Re Appeal No. 245, 29 Md. App. 131 (1975), Judge Orth explained in his ninth footnote:
      “Neither Brown v. Illinois, supra, nor Everhart v. State, supra, mentioned the question of retroactive application of their respective decisions. It is manifest, however, from the mandate of the Supreme Court to us in Ryon [45 L.Ed.2d 705], that Brown is to apply, at the least, to cases not finally litigated at the time of the Brown decision. We said in Greene v. State, 11 Md. App. 106, n. 1, at 111 (1971), that a case is finally litigated when the time for direct appeal expires without an appeal having been taken, or if an appeal has been made, the date on which certiorari was denied by the Supreme Court of the United States, or the time to apply for certiorari has expired without application having been made.”
      See also Wilson v. State, supra, 30 Md. App. 242.

      . It should be clearly understood, however, that we are in no way critical of police officers approaching persons reasonably suspected of criminal activities cautiously, and even with weapons in hand. Our opinion is concerned solely with the atmosphere in which a consent to search is obtained which may be completely in contrast to recommended police procedure during a lawful arrest.
      No facts were elicited at the supression to provide the probable cause necessary to show a proper arrest, let alone one conducted in the manner evident here. Straining to fill that void, the State argued on appeal that the arrest was lawful because when the two officers armed with shotguns approached appellant at the red light, they were properly doing so pursuant to Md. Code, Art. 66½ § 6-112:
      “Every licensee shall have his license in his immediate possession when driving a motor vehicle upon the highways of this State, and shall display it upon demand by a uniformed police officer, and the licensee shall have endorsed thereon in the proper handwriting of the licensee the name of the licensee; and when requested by a proper officer in the discharge of his duties under the law the licensee shall write his name in the presence of the officer to the end that the identity of said licensee may be determined. No license shall be valid unless the name ef the licensee has been so endorsed. For the purposes of this section display means the manual surrender of the licensee’s license certificate into the hands of the demanding officer for his inspection.”
      When appellant, faced with the armed officers’ approach, ran the red light, his violation of the law provided the probable cause for arrest according to appellee.
      In the first instance the approaching officers were not “uniformed” which is a prerequisite of the statute. Beyond that, it strains our credulity to think that members of our law enforcement agency would approach a vehicle stopped at a red light on a highway after midnight, with shotguns, for the purpose of asking the driver to display his license. Even if appellant had been an innocent autoist, instead of a possessor of narcotics, it was not unreasonable for him to hastily depart a scene where men dressed as civilians approached, armed with shotguns.

      . The State and appellants agree that the convictions of both appellants stand or fall on the validity of the consent.


author: Thompson, J.,

text:
    PETER XAVIER HAINA and CARLA WYANETTE STRAWBRIDGE v. STATE OF MARYLAND
    [No. 674,
    September Term, 1975.]

      Decided February 26, 1976.

      The cause was argued before Orth, C. J., and Thompson, Menchine and Mason, JJ.

      Richard H. Sothoron, Jr., Assigned Public Defender, with whom were DePaul, Willoner & Kenkel, P.A. on the brief, for appellant Haina. Joseph A. DePaul, with whom were DePaul, Willoner & Kenkel, P.A. on the brief, for other appellant.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Thomas A. Blair, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Carla Wyanette Strawbridge and Peter Xavier Haina were convicted for violation of the controlled dangerous substances laws of Maryland by the Circuit Court for Prince George’s County. Haina was sentenced to a total of 20 years. Strawbridge was sentenced to a total of 5 years, which sentences were suspended except for 12 days to be served on 6 consecutive weekends and placed on active probation for 5 years. The primary issues on appeal concern the validity of a wiretap order under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510-2520.

Wiretaps

Both appellants initially contend tkat the wiretap order was invalid because of the failure of the application and order to name the appellant Strawbridge as a person who was committing the offense and whose communications were to be intercepted. The pertinent provisions of 18 U.S.C. § 2518 in support of these contentions are:

(l)(b)(iv) — “Each application shall include the following information: . . . the identity of the person, if known, committing the offense and whose communications are to be intercepted. . . .”

(4)(a) — “Each order authorizing or approving the interception of any wire or oral communication shall specify — the identity of the person, if known, whose communications are to be intercepted . . . .”

The appellants, relying on a partial quotation of dictum of the United States Supreme Court in United States v. Kahn, 415 U. S. 143, 94 S. Ct. 977, 39 L.Ed.2d 225 (1974), argue that the standard for determining whether or not a person is “known” within the meaning of the statute is whether or not the government had reason to suspect that person’s complicity in the commission of the offense and the use of the telephone. In Kahn, supra, however, the Supreme Court stated that:

“We conclude, therefore, that Title III requires the naming of a person in the application or interception order only when the law enforcement authorities have probable cause to believe that the individual is ‘committing the offense’ for which the wiretap is sought.” Id. at 155.

It is evident then that “probable cause” to believe that a person is committing a specific crime and may be overheard on a specific telephone and not a “suspicion” is the standard to determine whether he is known to the State within the meaning of the statute. United States v. Bernstein, 509 F. 2d 996 (4th Cir. 1975); United States v. Donovan, 513 F. 2d 337 (6th Cir. 1975); United States v. Doolittle, 507 F. 2d 1368 (5th Cir. 1975), reargued 518 F. 2d 500; and also see United States v. Moore, 513 F. 2d 485 (D.C. Cir. 1975) construing the local law for the District of Columbia which is, for these purposes, identical with the general statute.

To determine whether or not there was probable cause to believe that the appellant Strawbridge was violating the controlled dangerous substance laws and would be using the specific telephones we first turn to the affidavit of PFC Howard S. Blake in support of the application for the ex parte order for the interception of the wire communications. Consisting of 24 pages, it detailed through a confidential source, whose reliability is not questioned and is referred to in the affidavit as (CS), and independent investigation by the affiant the reasons which he believed that the appellant Haina was engaged in a large wholesale illicit drug operation. The affidavit includes the following four references to the appellant Strawbridge:

1. “The (CS) has known Peter Xavier Haina for approximately three (3) years. The (CS) stated that Peter Xavier Haina resides at (5611 Monroe Street, Cheverly, Prince George’s County, Maryland). The said (CS) further related that the said residence (5611 Monroe Street, Cheverly, Prince George’s County, Maryland), is the residence of Peter Xavier Plaina’s mother and that Peter Xavier Haina resides in the upstairs portion of the said residence with his girlfriend, a white female known as ‘Carla’.

2. “The (CS) has told me that Haina’s girlfriend, a white female known as ‘Carla’, is also involved in the same scheme to distribute controlled dangerous substances. The (CS) stated that it has telephoned Haina as recently as the month of June, 1974, and that the (CS) has talked to ‘Carla’ on the occasions when Haina was not at home. The (CS) further related that ‘Carla’ had Haina return the (CS’s) telephone calls that it had made to Haina when Haina was not at home. The (CS) further stated that it has had drug related conversations mth ‘Carla’ while talking to her on Haina’s telephone number (927-4724).

“The (CS) stated that on the basis of its many in person and telephone conversations with Peter Xavier Haina and the white female known as ‘Carla’, it is absolutely positive in its identification of the person’s voices over the telephone.”

3. “The (CS) also stated to your affiant that Peter Xavier Haina operates a late model Chevrolet, Corvette, gray in color which bears Maryland Registration LR 9024. The (CS) also related to your affiant that Haina occasionally operates a Volkswagon, light blue in color which bears South Carolina registration (UIB 147), and that this vehicle belongs to Haina’s girlfriend who is known as ‘Carla’.

4. “A registration listing furnished to me by the South Carolina Motor Vehicle Administration revealed that South Carolina registration UIB 147 was on a 1970 Volkswagon, listed to one: Carla W. Strawbridge, 111 Arrowwood Road, Columbia, South Carolina.

“This leads your affiant to believe that the above listed Carla W. Strawbridge is the same white female known as ‘Carla’ who resides with Peter X. Haina at 5611 Monroe Street, Cheverly, Prince George’s County, Maryland.” (Italics added)

When the facts in the affidavit are taken as a whole, we find that the State had probable cause to believe that Strawbridge was involved in the narcotics operation and would be using either of the two telephones that was to be monitored under the application and order. As stated before the veracity of the informant is not questioned, nor can his basis of knowledge be challenged. Aguilar v. Texas, 378 U. S. 108, 84 S. Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U. S. 410, 89 S. Ct. 584, 21 L.Ed.2d 637 (1969). The information he recited to Officer Blake was gained from personal dealings with the appellants. While his references to Strawbridge are of a conclusive nature, when they are taken in context they are sufficient. Appellant Haina’s operation was conducted through the use of a telephone in the upstairs portion of the house where Strawbridge resided. When Haina was not at home, the informant would have “drug-related conversations” with Strawbridge. She would then have Haina return the call. The informant would then purchase narcotics from Haina. These facts sufficiently support the statement that Strawbridge was also involved in the same scheme to distribute controlled dangerous substances. It was not necessary that the informant detail his “drug-related” conversations with Strawbridge in order for the State to have probable cause to believe that Strawbridge was involved in the scheme, when it is obvious, when taken with the other facts, that she was. It should be pointed out that probable cause does not mean mathematical certainty nor even proof beyond a reasonable doubt. It is sufficient if the officers had reasonable grounds to believe that the individual was involved in the illicit activities and in the use of the telephones. See Collins v. State, 17 Md. App. 376, 302 A. 2d 693 (1973). It was mandatory that Strawbridge be named in the application and order.

Further evidence that Strawbridge should have been named in the application is revealed by the testimony of Officer Blake at the suppression hearing:

Q. “Weren’t you aware that Carla Strawbridge was in fact involved with Peter Haina in narcotics operations out of 5611 Monroe Street?

A. “Yes, sir.

Q. “And the reason you were made aware of that was based on the information relayed to you by your informant, is that correct?

A. “Yes, sir.

Q. “And you went ahead and corroborated your informant’s information by checking with the Department of Motor Vehicles in South Carolina?

A. “Yes, sir.

Q. “And based on your independent observations?

A. “Yes, sir.

Q. “In your mind, I am talking now prior to July 10, 1974, you were, for all intents and purposes, sure in your mind that Carla Strawbridge was involved with Peter Haina in terms of narcotics operations?

A. “Not completely, no, sir;”

While this was not a consideration which could have been taken into account by the judge at the signing of the order, it is further evidence that Strawbridge was a known person to the State at the time they made out the application for the order.

The reasons for the rule that the application and order must name an individual whose conversations there is probable cause to believe is involved in illegal activity and will be using the telephones in question are well set out in United States v. Bernstein, supra, which we summarize. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 was enacted to protect the policy of wire communications allowing the use of electronic surveillance in investigation of certain crimes. It prohibits wiretapping to collect general intelligence about individuals. Even though a naming of a known offender whose conversations are to be intercepted may not be a constitutional requirement, United States v. Kahn, supra, note 15, identification fosters conformity with both constitutional and statutory requirements; “in particular it is important to the exercise of (A) executive approval, (B) prior judicial authorization and (C) subsequent judicial review of interception.” For these reasons, Bernstein found that identification of known persons was a precondition to a valid intercept order and failure to identify renders an interception contrary to law and invalid as to that person. The Maryland Court of Appeals in State v. Siegel, 266 Md. 256, 292 A. 2d 86 (1972), held that there must be a strict compliance with the statute in order to obtain a valid order to engage in wiretapping. The recent case of Spease and Ross v. State, 275 Md. 88, 338 A. 2d 284 (1975), reiterated its holding insofar as the original application and order were concerned, while holding an unintentional failure to serve notice of the tap upon a named accused does not require suppression of intercepted conversations, in the absence of prejudice. The United States Supreme Court, subsequent to Siegel, supra, also held that there must be a strict compliance with a statute in order to obtain a wiretap order. United States v. Giordano, 416 U. S. 505, 94 S. Ct. 1820, 40 L.Ed.2d 341 (1974). The lack of strict compliance with this condition precedent to a valid order in regards to Strawbridge, prevents the introduction of any evidence derived from the wiretap into evidence against her. Bernstein, supra; 18 U.S.C. § 2515, infra.

The State argues (assuming she should have been named in the warrant) her convictions for the simple possession of cocaine and of marijuana should not be reversed. The evidence shows that while the wiretaps were in progress the appellant Haina engaged in two telephone calls in which he was informed that a confederate had been arrested and had named him as one involved in the drug traffic. Haina’s response was that he intended to “clean house.” As the result of hearing these conversations, the police officers stationed observers at the Haina home and observed the appellant Strawbridge bring a green bag out of the front door of the home and dispose of it after she walked to the side of the house out of the sight of the officers. A subsequent search located the bag under the porch of a neighbor’s house. The bag contained cocaine and marijuana which serve as a basis for appellant Strawbridge’s convictions and supported the several convictions of the appellant Haina. The wiretaps showing appellant Strawbridge’s conversations were introduced into evidence and showed that her possession was not that of an innocent agent, therefore, her conviction must be reversed for this reason alone.

We think her convictions must be reversed for yet another reason. It is apparent from what we have said, that Strawbridge was arrested directly as a result of the wiretap on her residence even though she was not a party to the conversations which precipitated her being found in possession of the prohibited controlled dangerous substances; thus, if she has standing, which we will discuss hereinafter, the physical evidence as to her must also be suppressed. Carter v. State, 274 Md. 411, 337 A. 2d 415 (1975), held that Maryland must follow the fruit of the poison tree doctrine first set up in Wong Sun v. United States, 371 U. S. 471, 83 S. Ct. 407, 9 L.Ed.2d 441 (1963). In Carter, supra, the Court held that information obtained by an illegal wiretap could not be used as a basis for procuring a search warrant which was otherwise valid. In the instant case, however, we would be required to hold the seizure of the narcotics invalid as to the appellant Strawbridge under the clear language of the federal statute, which states:

18 U.S.C. § 2515:

“Whenever any wire or communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.”

18 U.S.C. § 2518:

(10) (a) “Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that —

(i) the communication was unlawfully intercepted;

(11) the order of authorization or approval under which it was intercepted is insufficient on its face; or

(iii) the interception was not made in conformity with the order of authorization or approval. . . .” (Italics added)

In Alderman v. United States, 394 U. S. 165, 89 S. Ct. 961, 22 L.Ed.2d 176 (1969), it was found that the term “aggrieved party” did not apply to everyone against whom damaging evidence derived from an illegal wiretap was introduced. In order to suppress the party must have had his right to privacy breached by the surveillance. A petitioner is “entitled to the suppression of government evidence originating in electronic surveillance violative of his own Fourth Amendment right to be free of unreasonable searches and seizures. Such violation would occur if the United States unlawfully overheard conversations of a petitioner himself or conversations occurring on his premises, whether or not he was present or participated in those conversations.” Alderman, supra at 176. It is obvious, therefore, from the legislative history of Title III and the Supreme Court interpretation that the term “aggrieved party” is to be construed in accordance with existing standing rules to invoke the Fourth Amendment for a suppression motion. In the case at bar evidence was introduced against Carla Strawbridge which State officials obtained by overhearing conversations occurring from her residence. For this reason she had standing to challenge the fact that she was not named in the application and order.

The appellant, Haina, contends inasmuch as the warrant was invalid as to appellant, Strawbridge, he as well as she is entitled to object to all evidence that was obtained as a result of the wiretap. As we have said before since it was also his residence he would appear to have standing. As pointed out in Alderman, supra at 180, n. 11, however, a property owner’s right to object comes from a violation of his rights, not from an invasion of the rights of his family or invitees. In the case at bar Haina was named in the application and order; therefore, none of his privacy rights were illegally invaded. Alderman, supra, also held that evidence inadmissible against one co-conspirator is not inadmissible as to another co-conspirator.

To support his argument appellant Haina cites United States v. Bernstein, United States v. Donovan, and United States v. Moore, all supra. We see no support to appellant Haina’s position in any of them. On the contrary the language of all indicates quite clearly that only the unnamed person can benefit from this type of invalidity in the application and order for the wiretap. United States v. Bellosi, 501 F. 2d 833 (D.C. Cir. 1974) tends to support the appellant’s argument. We do not find it persuasive, however, because although anyone aggrieved has standing under the statute this does not mean he can prevail unless his own privacy has been invaded.

Haina’s second contention is that the application did not contain a statement as to whether or not other investigative procedures had been tried and failed, or why they appeared unlikely to succeed if tried, or to be too dangerous.

A statement describing the feasibility of other investigative techniques was in compliance with 18 U.S.C. § 2518 (1) (c). This statute reads as follows:

“(1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to make such application. Each application shall include the following information:
“(c) a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;”

Detective Blake’s affidavit was incorporated in the application and included the following:

“Further, it appears to your affiant that the use of electronic devices to intercept and record certain narcotic related telephonic communications of Peter Xavier Haina and others yet unknown, is required to prevent the further commission of the aforementioned crimes and to secure evidence of the commission of the said crimes.
“Your affiant represents that the particular types of communications sought to be intercepted and recorded are those concerning violations of the laws relating to controlled dangerous substances, and more particularly, those telephonic communications between Peter Xavier Haina, and his suppliers of controlled dangerous substances are stored and others yet unknown concerning:
“(1) The dates, times, places, and manner in which illicit drugs will be delivered to Peter Xavier Haina and others yet unknown,
“(2) The dates, times, places, and manner in which illicit drugs are distributed by Peter Xavier Haina and others yet unknown, and
“(3) The prices that the above mentioned persons pay for illicit drugs and the dates, times, places, and manner of payment for the said drugs.
“These wire communications will be between the aforementioned persons and their co-conspirators in the alleged scheme to distribute controlled dangerous substances and narcotic drugs and the wire communications to be intercepted will concern:
“(1) The identity, telephone numbers, place of residence, places of purchases, places of delivery, manner of delivery and purchase, and the locations where the controlled dangerous substances are stored by the co-conspirators, between the aforementioned persons.”
“The (CS) further related that Haina has become extremely apprehensive about possible police interference with his illicit drug business and that Haina has since removed large quantities of drugs from within his residence. The (CS) related that Haina’s present method of doing business is for a prospective purchaser of cocaine, marijuana, or other controlled dangerous substances to telephone Haina at his home, using either (927-4724) or (864-9433). Haina then tells the purchaser to go to a location, and then Haina calls a third person using one of the same two (2) telephone lines. Haina in his conversation with the third person, directs the third person to get the necessary quantity of drugs from a ‘stash’ (drug jargon known by your affiant as meaning a location where narcotics are stored) and to go to a prearranged location where the three (3) men, meaning Haina, the purchaser, and the third person meet and the drug and money are exchanged, or Haina himself will go to the location where the drugs are stashed and transport the drugs personally to the prearranged location where he will meet with the purchaser and the transaction of the money and drugs is made.
“The (CS) further stated that Haina, as a dealer in controlled dangerous substances normally will deal only with dealers and will not sell quantities less than wholesale quantities. That is, Haina does not usually make sales to the ultimate users of the illicit drugs. Haina has told the (CS) that by dealing only with dealers, Haina deals with persons whom he personally knows and trusts.
“I questioned the (CS) about the possibility of having the (CS) introduce an undercover police officer to Haina so that a police officer could purchase controlled dangerous substances directly from Haina, but the (CS) stated that this would be impossible due to Haina’s policy of dealing only with persons whom he has known and sold controlled dangerous substances to for a long time.
“. . . The source stated that the execution of a search and seizure warrant would be of little value since Haina did not keep his large quantities of drugs at his house any more and that Haina always has the drugs brought from a ‘stash’ to a randomly picked location often prearranged over the telephone for his drug transactions. . . .
“The (CS) stated that it does not know and cannot learn the locations of any of Haina’s ‘stashes’. The (CS), despite its long friendship with Haina, has been unable to ascertain Haina’s source of illicit drugs, other than that one of the major sources is in Prince George’s County, Maryland and that another major source of supply is in the state of Virginia.
“The (CS) was questioned by your affiant as to Haina’s driving habits and it was related to your affiant by the (CS) that Haina often drives his vehicle in an erratic manner by using excessive speeds and then by slowing his vehicle down considerably and making abrupt turns without warning. The (CS) stated that Haina constantly looks in his rear view mirror and uses the aforementioned maneuvers to make sure he is not being followed.
“. . .1 have attempted to follow Haina, with the help of other members of the Prince George’s County, Maryland, Police Vice Control Section, on these occasions by placing moving motor vehicle surveillance on him and his vehicle. On all of these occasions Haina would drive in an erratic manner by rapidly accelerating his vehicle and then abruptly reducing speed, and would also make abrupt turns without warning. From my previous experience in automobile surveillance of suspected drug violators, I recognize Haina’s erratic driving pattern to be a counter-surveillance technique, frequently used by drug violators.
“Your affiant then contacted Sergeant David W. VanDyke of the Prince George’s County Police Department Vice Control Section, who had conducted a narcotics investigation on the same Peter Xavier Haina during the month of April, 1974, and questioned Sergeant VanDyke as to the methods of moving surveillance he employed while attempting to follow Haina, while Haina was operating his vehicle. Sergeant VanDyke stated to your affiant that Haina drove in a very erratic manner as to elude anyone that might be following him. Sergeant VanDyke further related to your affiant that the case he investigated on Haina was closed ón an inactive status, since all surveillance methods failed to reveal any narcotic activity and he was unable to develop an informant to supply him with any information, as to Haina’s drug related activities.
“Your affiant then reviewed the transcript from the Maryland Motor Vehicle Administration which revealed that Peter Xavier Haina has received at least six citations for exceeding the posted speed limit. This further confirms the confidential source’s statement that Peter Xavier Haina drives in an erratic manner and fits into the pattern of driving observed by your affiant during the attempted surveillance period previously mentioned.
“Your affiant discontinued the surveillance at this point. My decision to terminate surveillance on Haina’s residence was that my presence in the neighborhood, as well as my driving past the residence, had begun to attract attention of some of the other residences in the neighborhood. This occurred despite the fact that I used a variety of undercover vehicles, which are completely unidentifiable as Police cars, to conduct the surveillance, seldom using the same vehicle on any two consecutive occasions. As a result of the attention any presence had attracted, I feared that one of two things would happen: (1) that Haina, himself, would observe that his house was under surveillance, or (2) that one of Haina’s neighbors would inform him that his house was under surveillance. Therefore, after discontinuing the aforementioned types of surveillance, all members of the Vice Control Section stayed completely away from Haina’s residence for over a week.
“By the time surveillance on Haina’s residence was terminated on June 30, 1974 I had concluded that the confidential source had been correct in its assertion that Haina no longer allowed illicit drug dealers to come to his residence and make their drug transactions as no apparent drug related traffic was observed going to or from Haina’s residence.”

The affidavit recited also other information concerning the reasons other investigative techniques would not work but we think we have recited sufficient portions to show the lack of a substantial basis for the appellant’s argument concerning the feasibility of other investigative techniques. Nevertheless we will set out each of the techniques that the appellant alleges could have been employed together with our comment thereon:

“(1) confidential informants (An informant was used but it was never explained why he, or she never testified at the trial.)”

We see no reason why the application should or could explain why the confidential informant did not testify at trial.

“(2) investigation of criminal backgrounds (Some names of persons with criminal records were obtained from the appellant’s seized phone books but many names in the books were not investigated at all)”

These records had been seized in a raid on the appellant’s premises two years earlier. It would seem that the investigation of the criminal background of persons mentioned in such stale information would not necessarily be of any current value unless and until it was established that they were still engaged with the appellant in an illegal activity.

“(3) mobile surveillance of an automobile (The appellant was followed at times but he was not followed when he was with co-defendant Strawbridge)”

We see no reason the appellant Haina can complain because he was not followed the three times the officers saw him with the appellant Strawbridge.

“(4) fixed surveillance of a residence (Appellant’s residence was monitored for less than a month but there was no systematic effort to obtain the identities of all persons dealing with the appellant)”

We think the affidavit adequately explained why the appellant’s residence was not subjected to further surveillance.

“(5) direct contact with the subject (There was some testimony, mostly conclusory, from Det. Davis of the Maryland State Police that direct contact was not possible)”

We feel that direct contact would have been impossible because, as stated in the affidavit, appellant Haina only dealt with known and trusted friends.

“(6) search warrants (A search warrant of appellants’ residence was obtained from District Court Judge Vincent Femia on June 22, 1974 but it was never executed)”

The record shows that the warrant was not executed because the police officers received information the appellant had moved the narcotics from his home. Furthermore, the police are under no obligation to make an arrest of one person before the identities of the other members of a conspiracy are determined. See United States v. Armocida, 515 F. 2d 29 (3rd. Cir. 1975).

“(7) immunity grants (Despite the fact that the controlled dangerous substance law specifically provides for the granting of immunity Art. 27 § 298 (c), the record discloses that only once during trial did the State attempt to grant immunity and immunity was not mentioned at all in the application.)”

Once again we do not see how what happened at trial would have any bearing on what an application should show but we think the application and accompanying affidavit sufficiently explain the inability to penetrate the appellant’s operation and that any attempt to grant immunity to any persons involved would simply have led to appellant learning he was under intensive investigation.

“(8) pen registers. (The record discloses no use of pen registers.)”

A pen register is simply a device attached to a telephone which discloses the numbers called from that phone. Under the facts alleged in the application, it seems apparent to us that resort to pen registers, which do not record conversations, would be of limited value and would have to have been thereafter followed by a regular wiretap.

“(9) eavesdropping on an informer (Osborn v. United States, supra authorizes this type of investigative technique but no mention was ever made in the record why this means would not be feasible).”

It is apparent the mere recording of a conversation of the informer with Haina would not be likely to reveal the names of the others who were involved in the purchase and distribution of the narcotics in the Haina organization.

We agree fully with the appellant’s quote from United States v. Lanza, 356 F. Supp. 27, 30 (M.D. Fla. 1973) as follows:

“The purpose of the exhaustion requirement is not to foreclose the use of electronic surveillance until the state has exhausted every possible means of obtaining a viable case against the subjects, but merely to inform the authorizing magistrate or judge of the nature and progress of the investigation and the difficulties inherent in the use of normal techniques.”

In short, it is difficult for us to imagine that the application could have more fully complied with the section of the statute requiring the State to show why other investigative techniques would not succeed.

Indictment

Haina alleges counts 1 and 17 of the indictment are unconstitutionally vague. Count 1 of the indictment charged that the appellant “. ... unlawfully conspired to violate the controlled dangerous substance laws of the State of Maryland . . .” and Count 17 of the indictment charged that the appellant “. . . unlawfully did keep and maintain ... a common nuisance, for the purpose of storing, concealing, administering or dispensing controlled dangerous substances. . . .” The first count of the indictment follows the statutory form set out in Md. Code, Art. 27, § 40 and is sufficient without specifying the particular drug involved. Scarlett v. State, 201 Md. 310, 93 A. 2d 753 (1953) and Quaglione v. State, 15 Md. App. 571, 292 A. 2d 785 (1972).

Count 17 of the indictment followed the language of Md. Code, Art. 27, § 286 (a) (5) and thus was sufficient. Baker v. State, 6 Md. App. 148, 250 A. 2d 677 (1969). Although the trial judge denied a demand for particulars he pointed out in ruling on a motion to dismiss Count 1 of the indictment that appellant Haina had access to all of the State's evidence and knew exactly the charges against him.

Hearsay Evidence to Establish Conspiracy

Appellant Haina, citing the familiar rule that a conspiracy must be shown by evidence aliunde before hearsay declarations of a co-conspirator can be admitted into evidence, contends that inasmuch as all of the evidence of the conspiracy was that recorded on the tapes, the tapes could not be admitted for that purpose. He relies primarily on United States v. Rich, 518 F. 2d 980 (8th Cir. 1975). Although the facts of that case are not entirely clear, it seems that the statements there were statements made by a conspirator out of the presence of the co-conspirators. The Court did not reach the point because it found ample evidence outside the declarations of the co-conspirators to prove the conspiracy. In making his arguments, appellant overlooks the fact that the declarations of one co-conspirator are admissible against a co-conspirator when forming a part of the conversation between them and the acts of one are admissible against the other when done in the latter’s presence and while the conspiracy is in progress. See Mason, Taylor and Taylor v. State, 18 Md. App. 130, 305 A. 2d 492 (1973); U. S. cert. denied, 416 U. S. 907; Irvin v. State, 23 Md. App. 457, 328 A. 2d 329 (1974), aff'd, 276 Md. 168 and 3 Underhill, Criminal Evidence § 81 (5th ed. 1957). In the instant case, it is apparent that the bulk of the conversations which showed the conspiracy were made under these conditions, therefore, the evidence was not hearsay and constituted substantive proof of the conspiracy. In addition, appellant makes the far-fetched argument that because the tapes of the telephone conversations were introduced through the testimony of Detective Blake all of the tapes were hearsay evidence. Detective Blake testified as to the accuracy of the recordings. The recordings were played to the jury. This did not make the recordings hearsay. Indeed, the appellant’s own statements on the tapes were sufficient independent evidence of the conspiracy to support the admission of the few statements of some of his corconspirators when he was not a party to the conversations. For a further discussion, see 58 A.L.R.3d 598.

Appellant Haina’s Standing to Contest the Admission of the Green Bag and Its Contents Into Evidence

As we have indicated the green bag was seized on a neighbor’s property. It is not accurate to say that the appellant had no standing to object to its introduction into evidence under Jones v. United States, 362 U. S. 257, 80 S. Ct. 725, 4 L.Ed.2d 697 (1960), as recently interpreted by the Maryland Court of Appeals in Duncan & Smith v. State, 276 Md. 715 (1976) because any time, in the context of a possessory crime, an accused is alleged to be in possession of an object he has standing to object to its introduction into evidence and to suppress it if it is illegally seized as to him. In the instant case, however, there was no showing to indicate that the appellant had any right to store his property under his neighbor’s porch, therefore, it was simply not an area in which he had a right to expect privacy. The Jones, supra, rule is limited to a person rightfully on the property. The appellant’s reliance on Garrison v. State, 28 Md. App. 257, 345 A. 2d 86 (1975), is misplaced because in that case it was determined that the police officers were trespassers and spying on the appellant in the basement of an apartment house at a time he had a right to be in that part of the premises. Appellant Haina attempts to bring his case within that rule by alleging that one of the officers who was shown to be standing to the rear of the appellant’s property concealed in a woods was on the appellant’s property. The record does not support such a finding because there is nothing to show that the woods was a part of the appellant’s property.

Judgment reversed as to Strawbridge.

Judgment affirmed as to Haina.

Costs of the appellant Straw-bridge to be paid by Prince George’s County.

         In that case the Court found the named person’s wife was not a known party because the government had no information as to her use of the telephones for gambling purposes.

      . Petitions for certiorari are now pending before the Supreme Court in all three of these cases.

      . See S. Rep. No. 1097, 90th Cong., 2d. Sess., 91 (1968).

      . 385 U. S. 323, 87 S. Ct. 429, 17 L.Ed.2d 394 (1966).