text:
    CHARLES VENNER v. STATE OF MARYLAND
    [No. 166,
    September Term, 1975.]

      Decided March 26, 1976.

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

      Arnold M. Zeruritz, Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, George E. Bums, Jr., Assistant Public Defender and Aldridge L. Lees, Assigned Public Defender on the brief, for appellant.

      Bernard A. Raum, Assistant Attorney General, with whom were Francis B. Burch, A ttomey General, Milton B. Allen, State’s Attorney for Baltimore City and H. Gary Bass, Assistant State’s Attorney for Baltimore City on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

May the State obtain evidence in a narcotics case from the excrement of a hospital patient, without a warrant, and use that evidence against the patient in a criminal trial?

This question was posed by a motion filed in the Criminal Court of Baltimore by Charles Venner. A two count information charged Venner with unlawfully possessing marihuana extract in sufficient quantity to indicate an intent to manufacture or distribute it, and with simple possession of the same substance. He moved to suppress the evidence and dismiss the information.

Both the issue raised by the motion, as well as the ultimate issue of guilt or innocence, were submitted to Judge Solomon Liss, without a jury, in a series of appearances from 12 December 1973 to 20 November 1974. Evidence which it was stipulated that the court should consider on both issues consisted of an agreed statement of facts, supplemented by testimony and exhibits. Judge Liss denied the motion and found Venner guilty on the first count. After sentence was imposed, Venner appealed.

The Facts Before The Court

The agreed statement was submitted on 27 September 1974. The transcript reads:

“THE COURT: All right, Mr. Bass [Assistant State’s Attorney], will you please give us the facts that are agreed on in this case?

Now as I understand it, Mr. Gede, these facts are stipulated and agreed and are to be accepted by the Court as if they had been introduced into evidence by the witnesses. Any facts that are not agreed on you will, of course, promptly let the Court know?

MR. GEDE [Defense counsel]: Yes.

THE COURT: Very well.

MR. BASS: Your Honor, on July 21, 1973, at 3:45 P.M., Charles Venner, a twenty year old male, was taken to Sinai Hospital in Baltimore, Maryland by several friends. The defendant was admitted to the emergency room in what appeared to be a semi-conscious state. The friends gave certain information to the attending physician, Dr. Robert Egbert of the Sinai Hospital Staff, and based on this information Dr. Egbert had reason to believe that perhaps the defendant had taken in his stomach, contained in balloons a substance known as hashish oil; and he also, on the basis of looking at the patient, believed that either one of the many balloons had burst inside the defendant, thus an overdose.

The doctor ordered x-rays taken by the hospital radiologist, and these photographs revealed 12 to 15 balloons still inside the defendant’s stomach.”

“MR. BASS: As I said, the x-rays revealed what looked like 12 to 15 balloons still inside the defendant’s stomach. Dr. Egbert then notified the Baltimore City Police Department, and Officer Russell Smeak of Northwest District. Officer Smeak, after hearing the situation, made arrangements with the Supervisor of Nurses, Intensive Care, if any stools contained balloons the hospital was told to contact Northern District, and they would respond and take custody of the contents.

On July 22, 1973, at 8:10 P.M., Officer Michael Leonard of the Northwestern District responded to a call of the hospital and took custody of 8 balloons. On July 23, 1973, Officer Wendell France responded to a call to the hospital and received 4 balloons. At approximately 6:30 Officer Allen Taylor went to the hospital to retrieve one more balloon passed by the defendant. On July 24, 1973, about 11:00 A.M., Officer Joseph Lombardi responded to the hospital call to receive eight more balloons found in the defendant’s stool. A total of 21 balloons were recovered, plus a fragment of a broken balloon.”

“THE COURT: Is it further stipulated between counsel that the balloons that were turned over to Officer Leonard, Officer France, Officer Taylor, and Officer Lombardi were, in fact, retrieved from the stools that were passed by the defendant in the hospital?

MR. GEDE: Yes, sir.

THE COURT: Very well. Now that still leaves, obviously, the open question as to whether or not the nurse was entitled — the nurses were entitled to take these stools and to examine them, and whether the police officers were entitled to receive them without a search and seizure warrant.

MR. BASS: Chemist William Butler of the Baltimore City Police Department analyzed the contents of the rubber balloons and obtained a positive test for hashish oil.

Your Honor, that is as far as we can go with the statement of facts.

MR. GEDE: Your Honor, just for the record, I will stipulate that that is what he would say without seeing the chemist’s report and analysis of it.”

“THE COURT: I think what you ought to do is bring your expert in. This is an essential part of the case. There’s a question of whether he should be held for possession or distribution, and I think that we ought to have testimony on this. I suggest to you, when we meet again two weeks from today, that the expert be here so we can qualify him and have him bring his report in and have him give us the benefit of any expertise as to what this means from the standpoint of dosage as well as from the standpoint of quantity.”

There followed a discussion among the judge and counsel as to additional evidence. Judge Liss set a time for taking further evidence. At a later hearing the State called a qualified chemist, who testified that he had received the balloons and examined their contents. They contained what the chemist referred to as hashish oil, or marihuana extract, the principal agent extracted being tetrahydrocannabinol. The quantity of the extract was 200 grams, which the witness said could easily involve a hundred pounds of marihuana. He said that that much extract could be used to produce a hallucinogenic effect in thousands of cigarettes.

The record of Venner’s admission and treatment at Sinai Hospital, in Baltimore, which was before Judge Liss and is a part of the record before us, provides more detail than was included in the agreed statement. The hospital summary shows, as the history of the present illness:

“Patient has been in apparent good health without any significant medical history. Three months ago, he went to Morocco for a vacation and on returning home he was caught with illegal possesion of narcotics (name ? unknown). He was jailed for three months, and was released a few days prior to admission. Before boarding the plane, he allegedly swallowed 24 to 25 bags of hashish oil and on that night he became dizzy, weak, nauseated, with dry mouth. He arrived at New York Kennedy Airport and passed 5 balloons the next day. The night prior to admission he developed nausea, hallucinations, increased appetite, drowsiness, and disorientation. His condition remained the same and he was brought to the Sinai Hospital Emergency Room the next day, euphoric, disoriented and lethargic, but responding to verbal orders.”

The summary contains this description of “Hospital Course”:

“Patient was admitted to Mt. Pleasant ICU, and on the 2nd hospital day, he was coherent, and oriented x3. He was noticed to be persistently bradycardeic, which did not respond to Atropine. At 5:40 p.m., on that day, he passed through the rectum 8 balloons of different colors. Another five balloons were passed on the next day, then four balloons on the 4th day and two balloons on the 5th day. Vital signs remained stable in spite of the bradycardia, ranging between 34 to 60/min. Serial abdominal films revealed the presence of numerous foreign bodies, and the last film taken the day before discharge disclosed no evidence of such foreign body. Police report on the contents of one of the balloons was positive for marihjuana [sic].”

Progress notes in the hospital record contain these entries:

, _40 “7/22 6 pm Passed at 5 pm 8 bags (balloons) of diff colors — yellow, green, blue. They were given to the nursing supervisor at once. 11 more bags to go (if count is correct).”

“7-23 He passed 5 balloons more.”

“7/24 passed 4 balloons (intact) plus a small fragmént. Total = 8 + 5 + 4 = 17. (2 more if count is correct & if all are intact, however, apparently at least one got burst).”

30 “7/25 12N passed 2 more balloons at 3 ]M yesterday. Everything accounted for, however, on further questioning, he says that he could not remember if they were really 24 or 25.”

On the Doctors Order Sheet an entry at 1:00 A.M. on 22 July 1973 says, “Foreign bodies in stools to be handed over to security.” Relevant entries in Nurses Notes are:

“7-22 5 40/pm Had large stool including 8 colored articles which were removed and given to Dr. Uy.
6 P.M. Miss Keithly given the foreign bodies taken from stool. Dr. Uy gave them to Miss Keithly.”
“7-23 10 45/AM Passed large brown formed stool c [with] 5 balloons.”
“7-24 9 10/AM Had large formed bowel movement & passed four balloons.
3 30/PM Passed 2 more balloons <* loose bowel movement. Balloons kept — locked security. To be analyzed.”

Contentions on Appeal

The questions in this appeal, as appellant presents them in his brief, are:

1. Did the trial court err in admitting evidence obtained as a result of Appellant’s medical treatment for drug abuse?

2. Was there sufficient probable cause to justify a warrantless search and seizure?

3. Did the State show sufficient exigent circumstances to justify a warrantless search and seizure?

Numbers 2 and 3 could well be combined and restated: Was the contraband lawfully obtained by the police?

Statutory Protection Against Disclosure

Appellant’s first contention invokes the protection of Code, Art. 43B, § 10 (b), which says:

“Whenever a person shall seek counselling, treatment or therapy for any form of drug abuse from a physician, psychologist, hospital, an educator pursuant to the provisions of § 85A of Article 77, or a person, program or facility authorized by the Authority to counsel or treat any form of drug abuse, no statement, whether oral or written, made by such person and no observation or conclusion derived from such counselling, treatment or therapy made by such physician, psychologist, hospital, person, program or facility shall be admissible against such person in any proceeding. The facts or results of any examination to determine the existence of illegal or prohibited drugs in a person’s body shall not be admissible in any proceeding against such person, provided that the facts or results of any such examination ordered pursuant to a civil commitment proceeding under this article or as a condition of parole or probation shall be admissible in the proceeding for which the examination was ordered.”

Pointing out that the statute, Art. 43B, § 2 (d) defines drug abuse as including “any misuse by any person of * * * any drug whose use is either prohibited or regulated”, appellant argues that § 10 (b) makes inadmissible against him any evidence from the hospital or its personnel or records. The same argument was made below. In an excellent opinion filed with his ruling on the motion to suppress, Judge Liss held that Venner was not entitled to the protection of the statute. We adopt that portion of Judge Liss’s opinion. He said:

“Defendant urges that he is entitled to the protection of this section of the Drug Abuse Control and Rehabilitation Act (Article 43B); and that therefore the evidence obtained by reason of his examinations and treatment at Sinai Hospital is inadmissible. The State concedes that if this evidence is suppressed the case against the Defendant must fall. It therefore becomes necessary for the Court to determine whether it was the intent of the Maryland Legislature to afford the Defendant, under the circumstances of this case, the protection mandated by Article 43B.
“Article 43B begins with a Declaration of Purpose which states the legislative intent for the passage of the Act. Section (c) of that Declaration of Purpose is as follows:
‘Experience has demonstrated that drug addicts can be rehabilitated and returned to useful lives only through extended periods of treatment in a controlled environment followed by supervision in an after-care program. The purpose of this article is to provide a comprehensive program of human renewal of drug addicts in rehabilitation centers and after-care programs. The comprehensive program provided by this article is designed to assist the rehabilitation of drug addicts. It applies to addicts who are not accused of crimes, as well as addicts convicted of crimes. The program is further designed to protect society against the social contagion of drug addiction and to meet the need of drug addicts for medical, psychological and vocational rehabilitation, while safeguarding the liberty of individuals against undue interference. ’ (1969, Ch. 404) [Italics supplied]
“Delegate Steven V. Sklar,' of the Maryland Legislature, the sponsor of Article 43B, was called as joint witness by the State and by the Defense. Delegate Sklar indicated that it was his view that the legislative intent was to prevent the use of evidence in a court proceeding against a drug abuser or drug user where this evidence was obtained by reason of the drug user’s or abuser’s seeking counseling, treatment or therapy from a physician, psychologist, hospital, or educator.

“Article 43B, Section 2, included the following definitions:

‘(D) “Drug abuse” means any misuse by any person of or dependence by any person on any drug whose use is either prohibited or regulated by 276 through 302 of Article 27, including, but not limited to, narcotic and non-narcotic drug addiction and narcotic and non-narcotic drug habituation.
‘(E) “Drug Addiction” means a physical and psychological dependence on any drug enumerated in 276 through 302 of Article 27.
“Drug Addict” means a person exhibiting the symptoms of drug addiction or who, by reason of the repeated use of any drug enumerated above is in imminent danger of becoming addicted to that drug; provided, however, that no person shall be deemed a drug addict solely by virtue of his taking of any such drug pursuant to a lawful prescription issued by a physician in the course of professional treatment for legitimate medical purposes.’
“It would seem clear that the purpose of this Act was to aid in the treatment, counseling and rehabilitation of drug abusers and drug addicts. A reading of the declaration of purpose, the definitions, and Section 10 leads to the inescapable conclusion that the Legislature was seeking to encourage those unfortunates to seek treatment and not to be deterred from requesting such treatment and assistance because of the fact that the information obtained by the physician or hospital might be used in a criminal prosecution against the patient.
“The Defendant, however, has not shown that he is entitled to the benefits accruing from Section 10 of Article 43B. There is not a scintilla of evidence that he was either a drug abuser or drug addict. While it is obvious that the Defendant introduced a large quantity of hashish oil in his body, it is clear that this was not done for the purpose of achieving the psychotrophic response sought by a drug abuser. Instead, the Defendant very carefully devised an ingenious scheme to prevent the drug from entering his blood stream. The sole purpose was to assist the Defendant in secreting the contraband drug so that he might avoid discovery. The magnitude of the amount involved indicated an intention to manufacture or distribute the drug. His scheme might have succeeded except for the fortuitous circumstance that one of the balloons burst and he suffered the effects of a hashish overdose. The Court draws the conclusion from all the facts that the swallowing of the balloons was for the purpose of evading discovery of the contraband which was to be distributed illegally by the Defendant for a profit.
“Article 43B, Section 10, was never intended to assist the drug trafficker to engage in his nefarious trade and to use its provisions as a shield against apprehension and punishment.
“For the reasons given, the Court holds that the Defendant is not entitled to the protection afforded by Article 43B, Section 10.”

Fourth Amendment Protection Against Unreasonable Search and Seizure

The other issue, as Judge Liss stated it in his Memorandum Opinion below, was:

“The second issue to be decided by this Court is whether the evidence seized by the police without a warrant from Sinai Hospital should be excluded from the case because its seizure was a violation of the Fourth Amendment of the Constitution of the United States * *

Appellant’s questions 2 and 3 as he states them here, are directed to specific findings by Judge Liss under that issue.

That part of the Fourth Amendment which is invoked provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated * * *.”

Judge Liss cited and discussed numerous decisions of the United States Supreme Court, including Rochin v. California, 342 U. S. 165, 96 L. Ed. 183, 72 S. Ct. 205 (1952); Schmerber v. California, 384 U. S. 757, 16 L.Ed.2d 908, 86 S. Ct. 1826 (1966); Chambers v. Maroney, 399 U. S. 42, 26 L.Ed.2d 419, 90 S. Ct. 1975 (1970); Cupp v. Murphy, 412 U. S. 291, 36 L.Ed.2d 900, 93 S. Ct. 2000 (1973). He proceeded to examine the factual situation in this case and held that there was probable cause, that the circumstances were exigent, and that the warrantless seizure was reasonable and did not violate Venner’s rights under the Fourth Amendment. For these reasons he denied the motion to suppress the contraband as evidence and to dismiss the information against Venner.

We reach the same result, but we do not find it necessary to consider the questions of probable cause, exigency, or reasonableness. Those are considerations which must be weighed when a court undertakes to determine whether questioned evidence, seized by police from a defendant on trial, was seized in compliance with or in violation of conceded Fourth Amendment rights of that defendant. Before it is necessary to entertain the question of compliance on the one hand and violation on the other, there may be, as there is in this case, a threshold question to be answered. That question is whether the Fourth Amendment applies at all to the circumstances under which the police came into possession of the questioned evidence. If the Fourth Amendment does not apply — if Venner was not the “victim” of a police seizure — then questions of probable cause, exigency, and reasonableness are totally irrelevant. The well known comment of Mr. Justice Holmes in Hester v. United States, 265 U. S. 57, 68 L. Ed. 898, 44 S. Ct. 445 (1924) that “the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects,’ is not extended to the open fields”, serves to illustrate that agents of the government may, irrespective of probable cause or the lack of it, search an unprotected place and seize anything they find there, with no requirement whatever that they obtain a warrant or that there be exigent circumstances which required the immediate seizure without a warrant.

What must be kept in mind is that what the Fourth Amendment protects is the right of people to be secure against unreasonable searches and seizures. When a search and seizure are made in the proper execution of a properly issued warrant, they are not unreasonable and therefore they violate no constitutionally protected rights. To put it another way, there is no constitutional protection against a reasonable search and seizure. And not everything is protected against unreasonable searches and seizures. What is protected is the right to be secure in one’s person, house, papers, and effects.

What may be suppressed, upon a proper showing, are not persons or houses themselves, but papers and effects, broadened in meaning to include any so-called real evidence or physical evidence, including intercepted conversations, but distinguished from testimonial evidence, which has been unlawfully seized by the police from a person or from his house or other place where the individual has a constitutionally protected expectation of privacy.

In the familiar constitutional sense of the word “search” and the word “seizure”, it is neither a search nor a seizure when the police come into possession of contraband, instrumentalities of crime, fruits of crime, or mere evidence, without violating the security of the defendant’s person or his house or other constitutionally protected area.

A review of the evolution of Fourth Amendment protection available to defendants in State criminal cases may be helpful to an understanding of that protection as it is applied today. The rule followed for many years in Maryland, and in many other states, is found in Marshall v. State, 182 Md. 379, 35 A. 2d 115 (1943). The Court said, at 383:

“At common law matter pertinent to the issue was always admissible and the court would not raise an issue as to how it was obtained.”

The Court quoted with approval from Lawrence v. State, 103 Md. 17, 63 A. 96 (1906), which cited 4 Wigmore on Evidence, Sec. 2264, and 1 Greenleaf on Evidence, Sec. 254 (a), and quoted from Greenleaf that “though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility, if they are pertinent to the issue. The court will not take notice of how they were obtained, whether lawfully or unlawfully, nor will it form an issue to determine that question.”

This view was reaffirmed by the Court of Appeals in Davis v. State, 189 Md. 640, 57 A. 2d 289 (1948), in which the Court said, at 645:

“This State has aligned itself with those jurisdictions holding that the question of how evidence is obtained is collateral to the issue of the guilt or innocence of the accused, and, therefore, pertinent evidence, no matter how obtained, will be admitted.”

It should be noted that the rule applied as the law of Maryland in the cases just cited was the common law rule. A statutory modification enacted in 1929 made inadmissible in most misdemeanor trials evidence obtained through an illegal search or seizure. The common law rule continued to apply in felony cases. That statute, known as the Bouse Act, appeared as Code, Art. 35, § 5, until 1 January 1974, when it was repealed by Acts of 1973,1st Sp. Sess., ch. 2, § 2.

When Mapp v. Ohio, 367 U. S. 643, 6 L.Ed.2d 1081, 81 S. Ct. 1684 (1961), extended the federal exclusionary rule of Weeks v. United States, 232 U. S. 383, 58 L. Ed. 652, 34 S. Ct. 341 (1914), to state prosecutions, defendants in all criminal prosecutions, felony or misdemeanor, became entitled, as a matter of federal law, to the exclusion from the trial of all evidence obtained in violation of the Fourth Amendment.

But one must have been a “person aggrieved” — he must have been the victim of an unlawful seizure — to be entitled to the protection of Mapp’s exclusionary rule.

In Katz v. United States, 389 U. S. 347, 19 L.Ed.2d 576, 88 S. Ct. 507 (1967), the accused sought to suppress a telephone conversation seized by agents by the placing of an electronic device on the outside of a telephone booth in which Katz originated a call. The issues as argued were whether a public telephone booth was a constitutionally protected area, and whether a physical penetration into a constitutionally protected area is necessary to make the search unlawful. The Supreme Court declined to adopt that formulation of the issues. It said, at 350:

“In the first place, the correct solution of Fourth Amendment problems is not necessarily promoted by incantation of the phrase ‘constitutionally protected area.’ Secondly, the Fourth Amendment cannot be translated into a general constitutional ‘right to privacy.’ ”

The Court went on to say, at 351:

“For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U. S. 206, 210[, 87 S. Ct. 424, 427, 17 L.Ed.2d 312]; United States v. Lee, 274 U. S. 559, 563[, 47 S. Ct. 746, 748, 71 L. Ed. 1202], But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”

Answering the contention that Katz was not in a private place because he could be seen in the booth through the glass the Court said, at 352:

“But what he sought to exclude when he entered the booth was not the intruding eye — it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. No less than an individual in a business office, in a friend’s apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.”

Not all of the cases in this area undertake to draw a clear distinction between two approaches which we see as different, and which may or may not, in a particular case, be significant to the result. It is one thing to hold that evidence may be used because the manner in which the police came by it was unrelated to any right of the accused under the Fourth Amendment. It is quite different to hold that evidence may be used because the police respected the accused’s Fourth Amendment rights and the seizure was reasonable, having been made under a valid warrant, or upon probable cause and exigent circumstances.

Cardwell v. Lewis, 417 U. S. 583, 41 L.Ed.2d 325, 94 S. Ct. 2464 (1974), seems to illustrate this lack of distinction. An Ohio murder victim had been found near his car, which had been pushed over an embankment. Police took scrapings of foreign paint from the car, and made casts of tire tracks found at the scene. Almost three months later the police, having developed probable cause to charge Lewis, asked him to come to the police office for interrogation. They obtained an arrest warrant before he arrived. After Lewis had been there some seven hours, the police served the arrest warrant. They took possession of his car from a public parking lot, and the next day examined the tire treads and took paint samples. Both were later connected to the murder scene. The police had no warrant to search the car.

After his conviction in a state court, Lewis obtained habeas corpus relief in the U. S. District Court, which held that the warrantless seizure of evidence from the car violated Lewis’s Fourth and Fourteenth Amendment rights. The U. S. Court of Appeals affirmed.

The Supreme Court reversed, by a judgment announced in an opinion by Mr. Justice Blaekmun, in which three other justices joined. Mr. Justice Powell concurred in the result. Justices Stewart, Douglas, Brennan, and Marshall dissented. The opinion by Mr. Justice Blaekmun said, at 591:

“ * * * the exercise of a desire to be mobile does not, of course, waive one’s right to be free of unreasonable government intrusion. But insofar as Fourth Amendment protection extends to a motor vehicle, it is the right to privacy that is the touchstone of our inquiry.
“In the present case, nothing from the interior of the car and no personal effects, which the Fourth Amendment traditionally has been deemed to protect, were searched or seized and introduced in evidence. With the ‘search’ limited to the examination of the tire on the wheel and the taking of paint scrapings from the exterior of the vehicle left in the public parking lot, we fail to comprehend what expectation of privacy was infringed. Stated simply, the invasion of privacy, ‘if it can be said to exist, is abstract and theoretical.’ Air Pollution Variance Board v. Western Alfalfa Corp., 416 U. S. 861, 865, [94 S. Ct. 2114, 2116, 40 L.Ed.2d 607] (1974). Under circumstances such as these, where probable cause exists, a warrantless examination of the exterior of a car is not unreasonable under the Fourth and Fourteenth Amendments.”

The comment appears to mix two ingredients which clarity suggests should be kept separate. If indeed no expectation of privacy was infringed, then probable cause and the reasonableness of the warrantless search are irrelevancies. We point this out to emphasize that if the Fourth Amendment is not applicable, we need not look for compliance. If the Fourth Amendment is applicable, compliance is, of course, mandatory.

In the case now before us, the State raised no question, here or below, of Venner’s standing to contest the seizure of the contraband. Perhaps he was thought to have the “automatic standing” recognized in Jones v. United States, 362 U. S. 257, 4 L.Ed.2d 697, 80 S. Ct. 725 (1960). In Jones the Court recognized two grounds for according standing: (a) when the crime charged is possession of the goods at the time of the seizure, and, (b) when the accused had a possessory or proprietary interest in, or was legitimately upon the premises at the time of the search.

In Duncan v. State, 276 Md. 715, 351 A. 2d 144 (1976), the Court of Appeals clearly held the automatic standing rule of Jones to be in force in Maryland, notwithstanding the development of other alternatives to the dilemma of both asserting and denying possession of the same goods at the same time. In any event, “standing” is not involved in the case now before us.

The Fourth Amendment Does Not Protect Against Police Seizure Of Abandoned Property

Numerous cases have been concerned with the use of evidence once owned, possessed, or controlled by an accused, but which comes into the possession of the police after it has been abandoned or otherwise relinquished by him. An example is found in Abel v. United States, 362 U. S. 217, 4 L.Ed.2d 668, 80 S. Ct. 683 (1960). An alien suspected of espionage was arrested in his hotel room by immigration officers on an administrative warrant. Agents of the F.B.I. hovered in the background. When Abel packed his belongings and checked out of his hotel room to accompany the immigration officers, the F.B.I. agents, without a warrant, but with the permission of the hotel management, searched the vacated room. In a waste basket they found and seized two items later used, over objection, as evidence. One was a hollowed out pencil containing microfilm. The other was a block of wood containing a cipher pad. The Court said, at 241:

“No pretense is made that this search by the F.B.I. was for any purpose other than to gather evidence of crime, that is, evidence of petitioner’s espionage. As such, however, it was entirely lawful, although undertaken without a warrant. This is so for the reason that at the time of the search petitioner had vacated the room. The hotel then had the exclusive right to its possession, and the hotel management freely gave its consent that the search be made. Nor was it unlawful to seize the entire contents of the wastepaper basket, even though some of its contents had no connection with crime. So far as the record shows, petitioner had abandoned these articles. He had thrown them away. So far as he was concerned, they were bona vacantia. There can be nothing unlawful in the Government’s appropriation of such abandoned property. See Hester v. United States, 265 U. S. 57, 58[, 44 S. Ct. 445, 446, 68 L. Ed. 898].”

Another hotel room case is United States v. Cowan, 396 F. 2d 83 (2nd Cir. 1968). When a luggage thief had left his hotel room without paying his bill, and without removing the luggage from the room, the hotel manager took possession of the room, and removed the luggage. With the manager’s consent, F.B.I. agents searched the room and the luggage. The luggage had been stolen from airline terminals at Kennedy Airport.

The U. S. Court of Appeals affirmed Cowan’s conviction. The court said, at 86:

“Cowan contends that the search and seizure of the luggage were unlawful. We hold that appellant does not have standing to raise this issue.”

After a discussion of Jones v. United States, supra, the court went on to say, at 86-87:

“In order to have standing to challenge the legality of a search, one must establish that he was the victim of an invasion of privacy. [Citations omitted]. While redress for persons aggrieved by searches and seizures originally depended upon proof of a superior property interest, recent decisions rest upon the constitutional right to the protection of privacy rather than any interest in the property which was subject to the search or seizure. * * * Here there was no invasion of Cowan’s right to privacy. He had lost his right to use the room and with this the law gave the hotel the right to seize the property.”
“Under these circumstances, Cowan’s privacy was not invaded when the hotel manager permitted the federal agents to examine the contents of the baggage at the hotel or when the agents seized the baggage after Cowan’s arrest. And since the hotel, not Cowan, was entitled to retain possession at the time when the baggage was seized there was no interference with Cowan’s property rights, such as they were, in the luggage.”
“Moreover, we agree with Judge Weinfeld that the luggage had been abandoned at the time of the search. * * * Appellant argues that the abandonment doctrine does not apply because there was no unambiguous act of intentional discard * * *. Abandonment does not require performing a ritual; rather it is a question of intent.”

In United States v. Maryland, 479 F. 2d 566 (5th Cir. 1973), the appellant and other occupants of a described automobile were arrested by a deputy sheriff on the request of a neighboring sheriff, who wanted them for passing counterfeit bills. The persons arrested were taken to the courthouse in a patrol car. A later search of the patrol car yielded five counterfeit bills between the seat and the cushion where appellant had sat. The bills were used as evidence against him at his trial.

After discussing Jones v. United States, supra, the court said, at 568:

“The Government’s first argument is that appellant voluntarily abandoned the counterfeit bills in the police car when he exited from it without the bills and therefore had no standing to object to the subsequent search by which they were discovered.
“We agree that the deputy’s search of the police vehicle after appellant had exited from it was not directed against appellant within the meaning of Jones and did not invade any area in which appellant had a reasonable expectation of privacy. Further, we agree that if appellant’s arrest was lawful, the abandonment was clearly voluntary.”

The court went on to hold that the arrest was lawful, therefore the abandonment was not brought about by unlawful police conduct.

The appellant in United States v. Minker, 312 F. 2d 632 (3rd Cir. 1962), cert. denied, 372 U. S. 953, 83 S. Ct. 952, 9 L.Ed.2d 978 (1963), was convicted of evading a tax based upon a lottery operation. A lawful search of Minker’s apartment had yielded no incriminating evidence. Thereafter

“ * * * government agents had arranged with Anthony Damore, a trash collector, to permit them to examine the contents of a trash receptacle located on the premises of the Hampden Boulevard apartment building, but outside the structure. The management of the apartment house had hired Damore to remove the trash three times a week. The receptacle was used by four tenants, as well as the building superintendent. The contents were examined off the premises, and the agents retained certain adding machine tapes and other slips of paper. Handwriting identified as Minker’s appeared on many of these items. It is the taking of these articles from the trash can that is challenged here as being an unreasonable search and seizure.
“Prior to trial appellant presented a motion to suppress this evidence. The district court, after hearing, denied the motion, holding that Minker had abandoned the articles prior to the seizure by the government. At the trial objection was made to the introduction of this evidence. We think it abundantly clear that not only had Minker abandoned the property but, in addition, that the trash can was located outside an area that would entitle him to constitutional protection.”

Still another abandonment case gave rise to United States v. Mustone, 469 F. 2d 970 (1st Cir. 1972). Secret Service agents had under surveillance a commercial premises at 3A Union Street, Boston, where they suspected a counterfeiting operation was being conducted. One of the appellants, Brennan, was observed leaving the premises, carrying two large trash bags. The court detailed what followed:

“Brennan placed these bags on the sidewalk near some garbage cans ‘several doors away’ from 3A Union Street and then left the area. Both bags were tied closed. Kozak picked up these bags and deposited them in the Boston Secret Service office. When Agent Miller opened them the next morning he found a sheet of paper containing the impressions of three and one half counterfeit ten dollar notes and three aluminum offset plates stained with green ink.
“Based primarily on this evidence government agents obtained a search warrant for 3A Union Street and on March 18 searched the premises. They found approximately $242,000 in printed but uncut counterfeit ten dollar notes, an offset press, a vertical camera, a platemaker, a black attache case containing plates used to print counterfeit notes, and a large quantity of other printing and photographic supplies. Isabarrone’s and Brennan’s fingerprints were found on objects inside the back room. All three appellants were arrested shortly thereafter.”

The court then stated the contention on appeal, and its holding. It said, at 972:

“On appeal appellants’ primary contention is that the trial court erred in denying their Rule 41(e) motions to suppress the evidence found in the trash bags and during the search of 3A Union Street. With regard to the trash bags, appellants assert that the government’s warrantless search and seizure of these bags violated Brennan’s fourth amendment rights. They rely on People v. Krivda, 5 Cal. 3d 357, 96 Cal. Rptr. 62, 486 P.2d 1262 (1971), vacated 409 U.S. 33, 93 S. Ct. 32, 34 L.Ed.2d 45 (1972), and argue that Brennan had a ‘reasonable expectation of privacy’ as to the contents of these bags. In Krivda the California Supreme Court, citing Katz v. United States, 389 U. S. 347, 88 S. Ct. 507, 19 L.Ed.2d 576 (1967), upheld a citizen’s expectation of privacy as to the contents of a trash can placed on a public sidewalk awaiting pickup by municipal rubbish collectors. There the court upheld the suppression of evidence obtained during the warrantless search of the can. We are not persuaded by this authority, however, and hold that when Brennan deposited the bags on the sidewalk he abandoned them. Implicit in the concept of abandonment is a renunciation of any ‘reasonable’ expectation of privacy in the property abandoned. The contrary suggestion strikes us as anomalous.”

In Robinson v. State, 13 Md. App. 439, 283 A. 2d 637 (1971), Chief Judge Orth, writing for this Court, made it clear that the seizure of discarded evidence, in an area where the accused had no justifiable right of privacy, is simply not within the protection of the Fourth Amendment. Two victims were robbed on the street by three men. Police arrived, and the victims pointed out the three men standing on a corner nearby. The police pursued them. Two of the men went into a building, and through a shoeshine parlor into a bathroom. An officer opened the door and ordered the men out. The officer found a pistol in a trash can in the bathroom. The gun was admitted in evidence over objection. We said, at 442-43:

“We hold that the search of the room and seizure of the evidence was not constitutionally proscribed. The Fourth Amendment protects ‘* * * the security a man relies upon when he places himself or his property within a constitutionally protected area * * * . There he is protected from unwarranted governmental intrusion.’ Hoffa v. United States, 385 U. S. 293, 301. But it is what a person justifi ably seeks to preserve as private, even in an area accessible to the public, which may be constitutionally protected from unwarranted governmental intrusion, for ‘the Fourth Amendment protects people, not places.’ Katz v. United States, 389 U. S. 347. The capacity to claim its protection ‘depends not upon a property right in the invalid place, but upon whether the area was one in which there was a reasonable expectation of freedom from governmental intrusion.’ Mancusi v. DeForte, 392 U. S. 364, 368. Thus ‘ * * * the expectation of privacy is necessarily limited to that which is justifiable and reasonable; and what that encompasses depends upon and is controlled by the circumstances of each case.’ Kirsch v. State, 10 Md. App. 565, 569.
“Robinson in oral argument before us conceded the legality of his warrantless arrest and clearly it was legal. Wescott v. State, 11 Md. App. 305. But the validity of the search and seizure here is not predicated upon it being incident to a legal arrest in any event. See Chimel v. California, 395 U. S. 752. It is simply that as to Robinson and Jones the ‘bathroom’ was not a constitutionally protected area. They hid in it at the approach of the police and the men they had robbed. Assuming that it was accessible to the public as a public restroom, they had no justifiable and reasonable expectation of privacy therein under the circumstances here. They cannot complain because the police entered the room and seized an article which, by a rational inference, they had discarded. Davis v. State, 2 Md. App. 630. This was no unwarranted governmental intrusion, nor lawless police conduct. Brown v. State, 3 Md. App. 90, is clearly factually inapposite. We hold that the lower court did not err in overruling the objection to the admission of the pistol, clip and cartridge. The search of the room and seizure of the evidence was not within the protection of the Fourth Amendment and thus could not violate its guarantees.”

See also Davis v. State, 2 Md. App. 630, 632, 236 A. 2d 307 (1967), cert. den., 249 Md. 731 (1968), where we said that “one who abandons or discards property cannot complain with effect of the later seizure of such property by the police, or of its use against him in court.”

There Was No Intrusion Into Venner’s Body To Obtain Evidence

We should not permit ourselves to fall into imprecise thinking because the evidence sought to be suppressed was in Yenner’s body when the police first learned of its probable existence. The contraband was not taken from his body, by the police or by anyone acting for the police. There was no intrusion into the body.

It was made clear by the Supreme Court in Schmerber v. California, supra, that such procedures as the compulsory drawing of blood from the body for testing purposes plainly constitute searches of persons, and depend antecedently upon seizures of persons within the meaning of the Fourth Amendment. The Court held in that case that the warrantless seizure of blood to test for alcohol was reasonable, given a lawful arrest, probable cause, an emergency in which delay threatened the loss of the evidence, and the taking of the blood by a physician in a hospital environment according to accepted medical practices.

The other extreme is illustrated in the case of Rochin v. California, supra, decided in 1952, before Mapp v. Ohio, supra, applied the exclusionary rule of Weeks v. United States, supra. Fourth Amendment reasonableness was not involved, but the Court held in Rochin that the methods used to obtain evidence violated due process of law. The Court said, at 172-73:

“It is conduct that shocks the conscience. -Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents — this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.”

A warrantless seizure of evidence, involving a borderline intrusion into the body, was held by the Supreme Court in Cupp v. Murphy, supra, to have been constitutionally permissible, and not in violation of the Fourth or Fourteenth Amendments. Murphy’s wife was found strangled to death. There were abrasions and lacerations on her throat. Murphy, who was not then living with his wife, voluntarily came to the police station for questioning. The police suspected that a dark spot on Murphy’s finger might be dried blood, and asked to take scrapings from his fingernails. Murphy refused. The police took them by force. The scrapings contained traces of skin and blood cells, and fabric from the victim’s nightgown. They were used as evidence.

Drawing a limited analogy to Chimel v. California, 395 U. S. 752, 23 L.Ed.2d 685, 89 S. Ct. 2034 (1969), which defined the scope of a search incident to a valid arrest, and noting that the police had probable cause to arrest Murphy (although they had not done so), and noting “the very limited intrusion undertaken incident to the station house detention, and the ready destructibility of the evidence”, the Court approved the warrantless seizure in that case.

We refer to one other case involving an intrusion into the body, because of the similarity of certain facts to the present case. In People v. Bracamonte, Sup., 124 Cal. Rptr. 528 (1975), the Supreme Court of California reversed a conviction based upon evidence obtained by what the court held was an unreasonable search and seizure. California narcotics agents obtained a warrant to search the residence of Rita Bracamonte and her husband, their vehicles, and their persons. After the agents arrived, Mrs. Bracamonte fled in one of the described vehicles. She was stopped nearby, and was seen to swallow some balloons. Agents took her, handcuffed, to a hospital, and on the strength of the warrant, asked a physician to pump her stomach. Because of Mrs. Bracamonte’s strenuous resistance, she was strapped to a table by two nurses, and when she still refused to swallow an emetic solution, they passed a tube through her nose into her throat. After further resistance she gave up, and drank the solution. She regurgitated seven multi-colored balloons. They contained heroin.

The California court held that the warrant did not justify an intrusion into the appellant’s body. It said that the warrantless intrusion was more than minor, and “that the high statistical probability that the balloons would ‘pass through’ constituted a condition other than the emergency situation in Schmerber.”

The Balloons And Their Contents Were Abandoned By Venner

It could not be said that a person has no property right in wastes or other materials which were once a part of or contained within his body, but which normally are discarded after their separation from the body. It is not unknown for a person to assert a continuing right of ownership, dominion, or control, for good reason or for no reason, over such things as excrement, fluid waste, secretions, hair, fingernails, toenails, blood, and organs or other parts of the body, whether their separation from the body is intentional, accidental, or merely the result of normal body functions.

But it is all but universal human custom and human experience that such things are discarded — in a legal sense, abandoned — by the person from whom they emanate, either “on the spot”, or, if social delicacy requires it, at a place or in a manner designed to cause the least offense to others.

By the force of social custom, we hold that when a person does nothing and says nothing to indicate an intent to assert his right of ownership, possession, or control over such material, the only rational inference is that he intends to abandon the material. When one places, or permits others to place waste material from his body into the stream of ultimate disposition as waste, he has abandoned whatever legal right he theretofore had to protect it from prying eyes or acquisitive hands.

In this case the police did not confront or even see Venner at the hospital. He did not see them. There is nothing in the record to suggest that when the nurses, in the normal routine, took the bedpans from Venner’s bed to the place for disposition of their contents, that it was a place where Venner had a constitutionally protected right of privacy. Nor is there anything to suggest that Venner exercised or attempted to exercise any right of possession or control over the balloons. They were abandoned by Venner. Their subsequent retrieval on behalf of the police was lawful. Their use as evidence was lawful.

Judgment affirmed.

      . Another threshold question, with which we are not concerned here, is standing to object', as in Jones v. United States, 362 U. S. 257, 4 L.Ed.2d 697, 80 S. Ct. 725 (1960); Simmons v. United States, 390 U. S. 377, 19 L.Ed.2d 1247, 88 S. Ct. 967 (1968); Brown v. United States, 411 U. S. 223, 36 L.Ed.2d 208, 93 S. Ct. 1565 (1973). See also Duncan v. State, 276 Md. 715, 351 A. 2d 144 (1976); Garrison v. State, 28 Md. App. 257, 345 A. 2d 86 (1975); Shope v. State, 18 Md. App. 472, 307 A. 2d 730 (1973); Lopata v. State, 18 Md. App. 451, 307 A. 2d 721, cert. denied, 269 Md. 762 (1973); Palmer v. State, 14 Md. App. 159, 286 A. 2d 572 (1972); D. Trager and E. Lobenfeld, The Law of Standing Under the Fourth Amendment, 41 Brooklyn L. Rev. 421. Yet another threshold question could be consent. See United States v. Watson, 423 U. S. 411, 46 L.Ed.2d 598, 96 S. Ct. 820 (1976); Schneckloth v. Bustamonte, 412 U. S. 218, 36 L.Ed.2d 854, 93 S. Ct. 2041 (1973); Johnson v. State, 30 Md. App. 280, 352 A. 2d 349 (1976); Wilson v. State, 30 Md. App. 242, 357 A. 2d 437 (1976); Whitman v. State, 25 Md. App. 428, 336 A. 2d 515 (1975).

      . If one puts apples and oranges in the same pot, he gets neither applesauce nor orange marmalade. Sometimes the admonition is: “Don’t scramble the eggs.”

      . See footnote No. 2. Again the court has “scrambled the eggs”. It held that Cowan had no standing to attack the seizure, then proceeded to rule on the merits of that attack.

      . The full name of the appellant was Napoleon Maryland, Jr.

      . The court commented “that defendant in the instant case easily could have been transported to jail and placed in an isolation cell and kept under proper surveillance.” We infer that the court was suggesting a policy of “wait and watch”.

      . For an interesting fictional situation in which an eccentric Marylander, a Baltimorean and Eastern Shoreman, exercised posthumous dominion over his accumulated excrement, see The Floating Opera, by John Barth, 1967. Owner of a pickle processing plant at Cambridge, the testator, with a fetish for anything associated with his person, had accumulated 129 pickle jars filled with his excrement. He declared them to be part of the assets of his estate. A young Cambridge lawyer, representing the testator’s son, defeated the rights of the widow under the will by proving that she had failed to preserve the assets of the estate — she had emptied the contents of the jars onto her flower beds.


source: Caselaw Access Project

author: Powers, J.,

license: Public Domain

text:
    STEPHEN F. CALLAHAN v. STATE OF MARYLAND
    [No. 352,
    September Term, 1975.]

      Decided March 26, 1976.

      The cause was argued before Powers, Moore and Lowe, JJ.

      Eugene M. Lemer, Assigned Public Defender, for appellant.

      Leroy Handwerger, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County and Gerald K. Anders, Deputy State’s Attorney for Anne Arundel County on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

This is an appeal by Stephen F. Callahan from judgments of conviction entered in the Circuit Court for Anne Arundel County upon acceptance of his tendered pleas of guilty to possession of marihuana in sufficient quantity to indicate an intent to distribute, and to breaking a storehouse with intent to commit a misdemeanor therein. He was sentenced to a term of three years for possession of marihuana, and to a concurrent term of 18 months for storehouse breaking. The sentence for storehouse breaking included an order that the appellant make restitution to the victim in the amount of $3,100 within five years from the date of his release.

Because they are not otherwise reflected in the record, we deem it appropriate to note here two requests which were made in this Court on behalf of the appellant on the day of argument. Upon completion of argument in the case scheduled next ahead of this case, the Clerk informed the Court that appellant’s counsel wished to be heard on a preliminary matter. We recognized counsel, who informed the Court that Mr. Callahan was present and desired to participate in the argument of his appeal. After a recess, we denied that request. Appellant and his counsel conferred briefly, whereupon counsel requested leave to withdraw from the case, so that appellant, then being without counsel, might argue his case in proper person. We declined to permit counsel to withdraw. Counsel proceeded to argue the points raised in the brief.

Because the requests we have just noted involve procedure in this Court, they could not have been raised and decided in the lower court. If Rule 1085 precluded our consideration of them, their merit or lack of merit could never be decided. We have already ruled. We now explain.

The two questions are quite distinct. One is whether a person may waive counsel and argue his own case on appeal. The other is whether a person may participate in appellate argument as his own co-counsel.

May An Appellant Waive Counsel And Argue His Own Case On Appeal

The Sixth Amendment right to counsel at the trial level in all but petty offenses is now well recognized. The right to forego representation by counsel at trial has received less prominent attention. An exhaustive review of the decisions, as well as of relevant Federal and State constitutional and statutory provisions, may be found in the opinion by Mr. Justice' Stewart for the majority of the Supreme Court in Faretta v. California, 422 U. S. 806, 45 L.Ed.2d. 562, 95 S. Ct. 2525 (1975). So far as the right to have counsel or to forego counsel is protected or guaranteed by the United States Constitution, it flows from the Sixth Amendment. In Faretta the Supreme Court said, at 819:

“The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be ‘informed of the nature and cause of the accusation,’ who must be ‘confronted with the witnesses against him,’ and who must be accorded ‘compulsory process for obtaining witnesses in his favor.’ Although not stated in the Amendment in so many words, the right to self-representation — to make one’s own defense personally — is thus necessarily implied by the structure of the Amendment.”

The practical consequences of foregoing the right to counsel were discussed by the Court. It said, at 835:

“When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must ‘knowingly and intelligently’ forgo those relinquished benefits. Johnson v. Zerbst, 304 U.S., at 464-465. Cf. Von Moltke v. Gillies, 332 U.S. 708, 723-724 (plurality opinion of Black, J.). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ Adams v. United States ex rel. McCann, 317 U.S., at 279.”

The Supreme Court reversed the conviction of Faretta. It said that the record affirmatively showed that he was “literate, competent, and understanding, and that he was voluntarily exercising his informed free will.” The Court held that “[i]n forcing Faretta, under these circumstances, to accept against his will a state-appointed public defender, the California courts deprived him of his constitutional right to conduct his own defense.”

Despite recognition of the constitutional right of an accused to conduct his own defense, the courts remain alert to the requirement that a waiver of the right to counsel be shown on the record to be a knowing and intelligent one. Maryland Rule 719 provides that the trial court shall not permit a waiver of representation unless it determines, after appropriate questioning in open court, that the accused fully comprehends the factors set forth in § c of the Rule. An affirmative showing of compliance is required by § f. In Hamilton v. State, 30 Md. App. 202, 351 A. 2d 153 (1976), we discussed Faretta and Rule 719 in reversing a conviction because the record failed to show a knowing and intelligent waiver by the accused of his right to counsel.

We have shown the jealousy with which the courts protect the right of an accused to the assistance of counsel at his trial, and the correlative right to conduct his own defense at his trial, in order to point up the different rule which applies at the appellate level. Although the Supreme Court held almost three decades ago in Price v. Johnston, 334 U. S. 266, 92 L. Ed. 1356, 68 S. Ct. 1049 (1948), that a United States Court of Appeals has the power to issue an order in the nature of a writ of habeas corpus commanding that a prisoner be brought to the courtroom to argue his own appeal, the Court emphasized that such power was discretionary. It said, at 285:

“The discretionary nature of the power in question grows out of the fact that a prisoner has no absolute right to argue his own appeal or even to be present at the proceedings in an appellate court. Schwab v. Berggren, [143 U. S. 442, 36 L. Ed. 218, 12 S. Ct. 525,] supra. The absence of that right is in sharp contrast to his constitutional prerogative of being present in person at each significant stage of a felony prosecution, see Hopt v. Utah, 110 U. S. 574, [28 L. Ed. 262, 4 S. Ct. 202,] and Snyder v. Massachusetts, 291 U. S. 97, [78 L. Ed. 674, 54 S. Ct. 330, 90 A.L.R. 575,] and to his recognized privilege of conducting his own defense at the trial.”

The ensuing comment by the Court suggests that the fact of incarceration brings about the withdrawal or limitation of many privileges and rights, but the Court did not hold that the action of the court is any less discretionary when the accused is at liberty. And with no reference to the status of the person, whether imprisoned or at liberty, the Supreme Court said, in Faretta, supra, at 816:

“And in Price v. Johnston, 334 U. S. 266, the Court, in holding that a convicted person had no absolute right to argue his own appeal, said this holding was in ‘sharp contrast’ to his ‘recognized privilege of conducting his own defense at the trial.’ ”

We conclude that the question of whether an appellant may waive counsel and argue his own case on appeal involves no matter of right, but is addressed to the discretion of the appellate court.

May An Appellant Participate As Co-counsel In The Argument Of His Appeal

The other question — whether a person may participate as his own co-counsel, sometimes referred to as hybrid representation — has been held with respect to the trial level, to be in the discretion of the trial judge, and not a matter of right.

Both the Court of Appeals of Maryland and this Court have so held. In Strosnider v. Warden, 245 Md. 692, 226 A. 2d 545 (1967), an appeal from a denial of post conviction relief, the Court of Appeals said, at 695-96:

“Courts in this country are in almost unanimous agreement that where a party is represented by counsel, he is not entitled, ‘as a matter of right’ to examine witnesses or otherwise participate in the conduct of his trial. See cases cited, Annotation, 77 A.L.R.2d 1233, 1241-46. The matter is within the discretion of the judge, and we perceive no abuse of that discretion in this case.”

We said the same thing in Shelton v. State, 3 Md. App. 394, 401, 239 A. 2d 610 (1968). In Conway v. State, 15 Md. App. 198, 289 A. 2d 862 (1972), we said, at 222:

“There is no requirement in Maryland law that an accused, represented by counsel, be entitled ‘as a matter of right’ to actively participate in his trial.”

The Federal courts take the same view. Dealing with a contention that a request for hybrid representation denied by the trial judge found support in the Sixth Amendment’s interpretation in Faretta v. California, supra, the U. S. Court of Appeals for the Tenth Circuit said very recently, in United States v. Hill, 526 F. 2d 1019 (1975), at 1024-25:

“Prior to Faretta, courts had stated that a party had a right to represent himself or to be represented by counsel but did not have a right to hybrid representation. Lee v. Alabama, 406 F.2d 466 (5th Cir. 1968), cert. denied, 395 U.S. 927, 89 S.Ct. 1787, 23 L.Ed.2d 246 (1960); Braisier v. Jeary, 256 F.2d 474 (8th Cir.), cert. denied, 358 U.S. 867, 79 S.Ct. 97, 3 L.Ed.2d 99 (1958) (a civil case); Duke v. United States, 255 F.2d 721 (9th Cir.), cert. denied, 357 U.S. 920, 78 S.Ct. 1361, 2 L.Ed.2d 1365 (1958). See also United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973); United States v. Conder, 423 F.2d 904 (6th Cir.), cert. denied, 400 U.S. 958, 91 S.Ct. 357, 27 L.Ed.2d 267 (1970); Shelton v. United States, 205 F.2d 806 (5th Cir.), appeal dismissed, 346 U.S. 892, 74 S.Ct. 230, 98 L.Ed. 395 (1953). Since Faretta, at least one district court has determined that a criminal defendant already represented by counsel has no right to act as her own co-counsel. United States v. Swinton, 400 F.Supp. 805 (S.D.N.Y. 1975). These decisions do not foreclose a trial judge from allowing hybrid representation in appropriate cases; rather, they indicate no right to hybrid representation exists. Brazier v. Jeary, supra; United States v. Swinton, supra. Furthermore, we see no reason to distinguish between this case where retained counsel is involved in the request for hybrid representation and cases where appointed counsel is involved in such requests. See Duke v. United States, supra.
“We believe Faretta does not alter the established rules concerning hybrid representation. As noted in Swinton,
. . . Faretta ratified a consensus within the federal judiciary favoring a constitutional right to pro se status; that consensus has existed side by side with another finding that a defendant’s appearance as co-counsel lies within the discretion of the trial court.
The Sixth Admendment does not give any indication that hybrid representation is a right of constitutional dimensions.”

We have seen no case dealing with a request for hybrid representation on appeal. We conclude, however, that such a question which is discretionary at the trial level is surely no less discretionary at the appellate level.

Argument By An Appellant Is Not A Matter Of Right But Is In The Discretion Of The Court

We see the requests made orally to this Court on behalf of the appellant — that he be permitted to argue or to participate in the argument of his appeal — as invoking no right accorded to him by any constitutional or statutory provision or by any recognized practice.

The requests were directed to our discretion. In the exercise of that discretion under the circumstances, we denied the requests.

The Merits Of The Present Appeal

The contentions briefed and argued on behalf of the appellant have little if any merit — indeed, some of them approach the frivolous.

When the cases were called for trial in the Circuit Court for Anne Arundel County the Deputy State’s Attorney, Mr. Anders, informed Judge Walter E. Buck, Jr. that the State had entered into plea discussions with the defendant, through his counsel, Mr. Hertz. Mr. Anders explained to the court the bargain which had been reached. Callahan would plead guilty to both charges. The State would recommend concurrent sentences of three years and 18 months, and an order for restitution of $3,100 stolen from the restaurant which had been broken into. Mr. Anders said that if the court chose to order a pre-sentence investigation the State would be agreeable to the defendant’s being on bond until it was completed. It was noted that the $3,100 stolen consisted of $2,600 in currency and $500 in checks. The factual basis was shown as to each of the charges.

The record establishes that appellant was fully advised of his rights, and of the consequences of his guilty pleas. It is clear that the pleas were voluntary, and were knowingly and intelligently made. Miller v. Warden, 16 Md. App. 614, 299 A. 2d 862 (1973).

Judge Buck accepted the pleas of guilty. He said that in the absence of the State’s recommendation he would impose a longer sentence, but that he would follow that recommendation. He commented further that a pre-sentence investigation would merely involve unnecessary delay, because under no circumstances would he impose a lesser sentence. He proceeded to impose the sentences as recommended, including the order for restitution, which is required by Code, Art. 27, § 342.

Appellant argues that he was prejudiced by the failure of the court to obtain a pre-sentence investigation, and because such a report was not obtained, the State failed to fulfill the plea bargain. The extent of the bargain was that the State would be agreeable to the defendant’s being on bond if the court chose to order an investigation. Whether to order such an investigation is in the discretion of the court. Turner v. State, 5 Md. App. 584, 593, 248 A. 2d 801 (1968); Maryland Rule 761 c.

Appellant alleges here that he was coerced into pleading guilty because of some question about a Federal detainer. The allegation is a bald one, and utterly without merit.

He contends also that he should not be required to make restitution, because the money was not found on him when he was apprehended. Restitution was part of the bargain to which appellant agreed. The punishment for the crime to which he pleaded guilty includes the requirement that he “shall restore the goods and chattels so stolen, or pay the full value thereof to the owner.” We would suppose that if the money had been recovered, restitution would already have been accomplished. He contends also that restitution should not extend to the $500 in checks. No facts were developed below concerning the value of the checks, because the agreed bargain extended to the full amount. If that part of the sentence would accomplish an injustice, the court has power to modify it. Rule 764 b 1.

Judgments affirmed.

      . Maryland Rule 1005 provides no guidance on the questions involved here.


text:
    THE CITY CHEVROLET COMPANY v. ELLA WEDEMAN
    [No. 479,
    September Term, 1975.]

      Decided March 26, 1976.

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

      Thomas F. McDonough, with whom were E. Harrison Stone and Royston, Mueller & McLean on the brief, for appellant — cross-appellee.

      Jeffrey I. Goldman, with whom were Walker & McCadden on the brief, for appellee — cross-appellant.

       Note: Certiorari granted, Court of Appeals of Maryland, June 23,1976.

   Powers, J.,

delivered the opinion of the Court.

A judgment for punitive damages in this suit against an automobile dealer for misrepresentation will be reversed, because the issue should not have been submitted to the jury. The question of compensatory damages for the same wrong was properly submitted to the jury, and the judgment based upon the verdict for compensatory damages will be affirmed.

Punitive Damages Arising From Contracts

The tort of deceit, which was the cause of action sued upon, arose from a contractual relationship — the purchase and sale of an automobile. The Court of Appeals reiterated, in H & R Block, Inc. v. Testerman, 275 Md. 36, 47, 338 A. 2d 48 (1975), that “where the tort is one arising out of a contractual relationship, actual malice is a prerequisite to the recovery of punitive damages.” The Court defined the malice which must be proved when it said, at 43:

“Actual or express malice — at least in this context — has been characterized as the performance of an act without legal justification or excuse, but with an evil or rancorous motive influenced by hate, the purpose being to deliberately and willfully injure the plaintiff.”

The Court, speaking through Judge Levine, reviewed its cases, which have consistently followed the rule enunciated in the landmark case of Knickerbocker Co. v. Gardiner Co., 107 Md. 556, 69 A. 405 (1908). At page 44 the Court quoted from Knickerbocker as follows:

“ ‘... We do not mean to say there may not be [punitive] damages in cases of this character, for if, for example, there was evidence tending to show that the defendant had caused the contract to be broken for the sole purpose, and with the deliberate intention of wrongfully injuring the plaintiff, exemplary damages might be recovered, but when the object was merely to benefit itself, although the plaintiff would be thereby injured, there would be no more reason for allowing such damages than there would be in a suit by one party to a contract against the other for breach of it. ... ’ (emphasis added).”

Turning to the facts of H & R Block, Inc. v. Testerman, supra, in which the tort sued upon was negligent preparation of tax returns, the Court of Appeals said, at 47:

“Plainly, there was no actual malice here. As the Court of Special Appeals observed, the injury occurred because the Block employees ‘lacked the training, experience, or competence to understand the requirements of the business tax returns which they prepared.’ [Testerman v. H &R Block, Inc.] 22 Md. App. [320] at 350. In short, as found by the trial court, they were guilty of simple negligence — the failure to exercise reasonable care. They harbored no ill will toward appellees; nor were they motivated by an evil or rancorous motive influenced by hate or spite. Neither did they act with the sole purpose or the deliberate intention of wrongfully injuring them. The worst that can be said of appellants’ motives is that they were actuated by a desire to realize a commercial gain — hardly enough, as we have indicated, to constitute actual malice.”

To the same effect, see Food Fair Stores v. Hevey, 275 Md. 50, 338 A. 2d 43 (1975).

The Present Case

Ella Wedeman, appellee and cross-appellant here, filed a suit in the Superior Court of Baltimore City against The City Chevrolet Company for compensatory and punitive damages for fraud and misrepresentation. Her declaration alleged, in substance, that on 10 August 1970 she purchased a 1970 Chevrolet Impala Sport Coupe from City Chevrolet; that she was assured that the automobile was in perfect condition and had been used on a very limited basis as a demonstrator; that she relied upon the representations; that she later discovered that the automobile had been damaged and repaired and that the condition was known to City Chevrolet and its agent; that the representations of the condition of the automobile were falsely and fraudulently made to induce her to purchase the automobile; and that she did so, and was greatly damaged.

The case was tried before a jury, with Judge James A. Perrott presiding. Judgment was entered in favor of Mrs. Wedeman on special jury verdicts of $500 in compensatory damages and $6,000 in punitive damages. City Chevrolet appealed from that judgment, and Mrs. Wedeman filed a cross appeal.

The evidence showed that a few days after she took delivery of the car, Mrs. Wedeman was involved in an accident in which the right rear fender of the Impala was damaged. She sought an estimate for repair of the fender from an independent body shop. The operator of the shop told her that he observed under the new damage a plastic filler not ordinarily used by the manufacturer, and for that reason he thought that the fender had previously been damaged and repaired. She did not have the fender repaired, but took the car to City Chevrolet and complained of the damage, and left the car there. From that time, the conduct of both parties can only be characterized as unreasonably obstinate. Mrs. Wedeman insisted that City Chevrolet should repair the fender, because of the misrepresentation. There was some indication that the fender had been damaged in shipment from Detroit, but had not been involved in any accident after its delivery to City Chevrolet. There was evidence that City Chevrolet offered to repair the fender if Mrs. Wedeman would agree that they had not misrepresented the car’s condition to her. She refused. She testified further that even when she offered to pay for the repairs, City Chevrolet refused to do the repair work.

In any event, City Chevrolet did not repair the car. Mrs. Wedeman did not take it elsewhere, but left it there. She made no payments required by the sales agreement, which had been assigned to the Maryland National Bank. Payments due in September and October of 1970 were in default, and on 20 November 1970 the car was repossessed by the Bank. After the required notice it was sold. There was evidence that a judgment was obtained against Mrs. Wedeman by Maryland National Bank for $1,545, the deficiency on the contract after the car was sold. Mrs. Wedeman paid the judgment.

The purchase price of the automobile in the transaction here involved was $3,500. A witness familiar with the new and used car business, called by Mrs. Wedeman, testified without objection that because the car had been damaged, even though repaired, a fair selling price for it at retail would have been $3,000 or $3,100.

City Chevrolet moved at the close of all the evidence for directed verdicts as to compensatory damages and as to punitive damages. The court denied the motion as to compensatory damages. It initially reserved as to punitive damages, but, after further consideration, concluded to permit that issue to go to the jury, and covered punitive damages in the instructions.

Contentions On Appeal

The appellant, City Chevrolet, alleges two errors in admission of evidence at trial, error in failure to direct a verdict in its favor on the issues of both compensatory and punitive damages, and error in the trial court’s jury instructions on the issue of punitive damages.

The first evidentiary error asserted is based on testimony given by Mrs. Wedeman and a Maryland National Bank employee concerning the repossession of the car and the deficiency judgment obtained by the Bank. The trial judge correctly instructed the jury not to consider that transaction in assessing damages. Even if there was error in its admission, there was no prejudice, since the jury was later restricted in its consideration of that evidence.

Secondly, the appellant claims it was error to admit testimony of James C. Rettaliata on the value of the Impala. At trial, the appellant objected to the “designation” of Mr. Rettaliata as an “expert in the field of sales and value of automobiles.” The trial judge sustained that objection and accepted the witness “as qualified to testify as to what automobiles sell for within his range of knowledge.” No objection was made to this subsequent question and answer:

“Now, if you were selling that vehicle retail to the public, taking into consideration all of these factors, also what purchase price would you accept in order to sell that? A. I would accept between 3,000 and $3100.”

The alleged evidentiary error is not before us. Maryland Rules 522 and 1085.

The appellant’s motion for a directed verdict on the issue of compensatory damages was properly denied. When all the evidence and its inferences are taken in the light most favorable to Mrs. Wedeman, as they must be in considering such a motion, there was sufficient evidence to generate a jury issue on that question. Buchanan v. Galliher, 11 Md. App. 83, 87-88, 272 A. ,2d 814 (1971). The testimony of Mr. Rettaliata on the value of the Impala was properly before the jury. It was not necessary for the jury to resort to surmise and speculation in order to find liability and award compensatory damages for deceit.

We have discussed the law that applies to a claim for punitive damages in a suit on a tort arising out of a contractual relationship. In the absence of evidence from which the jury could find that the tort was committed with actual malice, it is error to permit the jury to consider punitive damages. We paraphrase what the Court of Appeals said in H & R Block, Inc. v. Testerman, supra: City Chevrolet’s agents harbored no ill will toward Mrs. Wedeman; nor were they motivated by an evil or rancorous motive influenced by hate or spite; they did not act with the sole purpose or the deliberate intention of wrongfully injuring her. The worst that can be said of their motives is that they were actuated by a desire to realize a commercial gain — hardly enough to constitute actual malice.

Accordingly, we hold that the trial judge erred in not directing a verdict in favor of City Chevrolet on the issue of punitive damages.

The Cross Appeal

In her cross appeal, Mrs. Wedeman contends that it was error for the trial judge to limit the jury’s consideration of compensatory damages to the difference between the value of the car as it was represented, and its actual value. She claims that the jury should have been permitted to compensate her for what she contends were her actual losses and damages, that is, the value of her trade in, the cash down payment, and the deficiency balance.

The case of Hinkle v. Rockville Motor Co., 262 Md. 502, 278 A. 2d 42 (1971), was a suit for damages for fraudulently misrepresenting an automobile to be new and undamaged when in fact it had been used and damaged. On appeal the issue was the measure of damages. The Court said, at 504:

“A review of the Maryland cases indicates some confusion in regard to the measure of damages allowable in this State in cases of fraud and deceit. Once past the universally accepted standard that a plaintiff may ‘recover such damage as the jury may find to have been sustained as the direct consequence of the alleged false representation,’ the difficulty begins.” (Citations omitted).

The Court analyzed at length the prior Maryland cases, and other case and text authorities, with respect to their recognition and application of one or the other of two different rules as the proper measure of damages. The two theories are referred to as the “out of pocket” rule and the “benefit of the bargain” rule. The rules are really quite simple, both to express, and to apply. They are that a defrauded plaintiff is entitled to recover either:

a. The difference between what he paid and the value of what he got (out of pocket), or

b. The difference between the value of what he agreed to buy and the value of what he got (benefit of the bargain).

Hinkle concludes by saying that Maryland applies the “ flexibility theory”, the effect of which is that a plaintiff may choose either rule provided he can support it by sufficient proof.

The difference between the two rules, although perhaps important in a particular case, is a narrow one. Unless the transaction was a “bargain” for the buyer — unless the thing he agreed to buy had a value greater than the price he agreed to pay for it — there is no difference between them.

There is no difference in the present case. Mrs. Wedeman paid $3,500 for the automobile. There was no evidence that the true value of what it was represented to be was anything other than the selling price.

The compensatory damages instructions given by Judge Perrott were as follows:

“I further instruct you that if you find for the Plaintiff, that the Plaintiff has proven these items, that she is entitled to damages equal to the difference between the value of the automobile as it actually was and the value of the automobile as it was represented to be.
“The evidence presented by the Plaintiff in this case is that she actually paid $3,500 for an automobile. Testimony of her expert witness, James Rettaliata, was that he would accept as a minimum the sum of $3,000 to $3,100 for such an automobile, if its previous damage had been repaired.
“Accordingly, you may not award damages to the Plaintiff in excess of $500 being the difference between the amount paid by the Plaintiff for an automobile and the $3,000 figure established by Mr. Rettaliata, if you find for the Plaintiff.
“You may, therefore, in awarding damages, should any you find, take into consideration the difference of the purchase price Ella Wedeman paid for the vehicle and its actual value.”
“I further instruct you that in considering any award of compensatory damages, if any you find, you may not consider the action of the Maryland National Bank, the fact that it repossessed the automobile or the fact that it sold the automobile belonging to the Plaintiff, Mrs. Wedeman.”

The instructions correctly stated the applicable law. Mrs. Wedeman’s dissatisfaction with them is that they prevented the jury from considering some of the expenses and losses which she claimed. It was proper that the jury be limited in its consideration of damages for which City Chevrolet might be found liable.

In Empire Realty Co. v. Fleisher, 269 Md. 278, 305 A. 2d 144 (1973), the Court of Appeals said, at 284-85:

“One suing for fraud or deceit must establish that he sustained damage by reason of the fraud, and that his injury was the natural and proximate consequence of his reliance on the fraudulent act, Russell v. Stoops, 106 Md. 138, 66 A. 698 (1907); Weaver v. Shriver, 79 Md. 530, 30 A. 189 (1894); cf. Fowler v. Benton, 245 Md. 540, 226 A. 2d 556 (1967).
“Appellees address themselves to this proposition by arguing that ‘Maryland has adopted a flexible approach to the award of damages in fraud cases,’ for which they cite Downs v. Reighard, 265 Md. 344, 289 A. 2d 299 (1972) and Hinkle v. Rockville Motor Co., 262 Md. 502, 278 A. 2d 42 (1971). While we did approve in those cases the flexible approach to damages for fraud and deceit, that doctrine applies only to the measure of damages, i.e., whether one may recover the ‘benefit of his bargain’ or is restricted to his ‘out of pocket’ losses. It does not refer to liability for damages, with respect to which the rule mentioned earlier is controlling. It is aptly stated in 37 Am. Jur. 2d, Fraud and Deceit, § 293:
‘In order to maintain an action for fraud and deceit, it is generally held to be necessary that the fraud be the real, direct, proximate, and immediate cause of the injury or damage. In other words, to sustain an action for deceit, the fraud and injury must be connected and must bear to each other the relation of cause and effect. ’ ”

We conclude, as did the Court in Empire Realty. “Such a relation clearly did not exist between the fraudulent act and the alleged damages in this case.”

Judgment in favor of Ella Wedeman against The City Chevrolet Company for compensatory damages of $500.00 affirmed.

Judgment in favor of Ella Wedeman against The City Chevrolet Company for punitive damages of $6,000.00 reversed.

Each party to pay one half of the costs.

      . In theory there is another possibility, in which it might be said that the buyer would be “stuck” with his bargain. If he agreed to pay $1,000 for a thing which, even as represented, was worth only $800, and which, because it was misrepresented, had a true value of $500, then $200 of his loss is attributable to poor judgment, and $300 to deceit. We know of no case presenting such circumstances. We do not suggest an answer.