APPEAL FROM THE Circuit Court for Garrett County, Fred A. Thayer, JUDGE.
Gilbert, C.J., and Moylan, Robert M. Bell, JJ.
Steven Kitzmiller was convicted at a non-jury trial in the Circuit Court for Garrett County (Thayer, J.) of manufacturing a controlled dangerous substance and possession of controlled paraphernalia. Subsequently, he was sentenced to a total two years imprisonment and fined $100.00.
Believing himself wronged as a matter of law, Kitzmiller has journeyed here. That he violated the State's Controlled Dangerous Substances Act is not questioned. What is in dispute is whether the Maryland State Police violated Kitzmiller's Fourth Amendment rights when they trespassed upon his land, scaled a tree to a height of 40 feet, and then, from a distance of 75 yards, peered, with binoculars, into the curtilage surrounding the Kitzmiller residence.
Prior to trial, Kitzmiller moved to suppress the physical evidence because, he contended, the search warrant was invalid in that it had been obtained in violation of the Fourth Amendment. Judge Thayer denied the motion, and the case proceeded on the basis of that common hybrid known colloquially as a "not guilty plea on an agreed statement of facts."
In this Court Kitzmiller mounts a two-pronged attack upon the validity of the search warrant, videlicet: 1) the observations made by the state trooper who obtained the warrant were violative of the Fourth Amendment; and 2) the trooper's affidavit in support of the application for the warrant was grounded on fabricated information, thus eradicating probable cause.
Before discussing the merits of the case, we shall set the scene.
The Maryland State Police received a call from the Garrett County Crime Solvers, informing them that an anonymous caller had told the Crime Solvers that marijuana plants were being grown on a property later identified as the residence of Steven Kitzmiller. The anonymous caller had also stated that a brown Plymouth Horizon automobile was located on the property, and that a number of marijuana
plants had been placed in the vehicle to dry. The information received by the State Police was conveyed to Trooper John Robert Thomas Jr., who proceeded to the property in hopes of corroborating the tip. Thomas entered upon the property from the rear. He proceeded under cover of a densely wooded area to a point approximately 75 yards from the house. There the trooper climbed approximately 40 feet up a tree and, with the aid of binoculars, made the observations which Kitzmiller asserts constituted an unconstitutional abridgment of the Fourth Amendment.
Based on what he allegedly saw, the trooper made application for a search and seizure warrant. The affidavit in support of the warrant recited that Trooper Thomas had seen a garden plot to the rear of the residence, a marijuana plant "approximately eight (8) feet" tall, and "a two-tone brown Plymouth automobile parked at the side of the house." The affidavit further recited "that a check with the Motor Vehicle Administration indicated the following: Steven Harold Kitzmiller, Rt. 2 Box 196B, Swanton, Maryland 21561, 5-9, 165, W/M, DOB 5/30/60."
Contrary to the representations made in the affidavit, the trooper's testimony at the suppression hearing revealed that there was no garden plot to the rear of the house, that no check had ever been made with the MVA, and that the supposed 8 foot tall marijuana plant that the trooper saw was in fact only 2 to 3 feet tall. When the warrant was executed, fifty-one marijuana plants were seized along with various dangerous substance paraphernalia.
The Trespass and the Fourth Amendment
We begin our analysis with the United States Supreme Court decision of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). There, the Court held that the legality of a warrantless police intrusion into allegedly private ...