I further find that there is no evidence of the ownership of the property and no evidence really of Mr. Jones' interest in the property. I further find that the time of the entry on September 14, 1974, when State's Exhibit Number 2 was removed therefrom, that Mr. Jones was not on the premises and consequently under the doctrine, [ Lopata v. State, 18 Md. App. 451 (1973) cert. denied, 269 Md. 762 (1973)] although he had been on the premises on prior occasions, he has not met his burden of proof to establish his standing to raise a Fourth Amendment infringement of his rights."
Denied October 1, 1973Petition denied October 1, 1973. Opinion of Court of Special Appeals reported: 18 Md. App. 451.
Rakas, 439 U.S. at 133-34, 99 S.Ct. at 425 ("Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.") (citing Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966-67, 22 L.Ed.2d 176 (1969). See also Lopata v. State, 18 Md. App. 451, 452-53, 307 A.2d 721 (1973) ("It is not enough for a defendant to show that someone's constitutional rights have been violated; he must show that his constitutional rights have been violated." (Emphasis in the original)), cert. denied, 269 Md. 762 (1973).
That issue, as interesting as it may be, is not preserved for review because Cobey, through his trial attorney, consented to submit to the blood test. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Lopata v. State, 18 Md. App. 451, 307 A.2d 721 (1973). Since the question was not preserved, we do not consider it. Md. Rule 8-131(a).
"Chaotic," however, is not to be equated with "coercive" in the absence of some showing that the police officers used the "chaotic" situation as a means of coercing their intrusion into the appellant's home. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Anderson v. State, 237 Md. 45, 205 A.2d 281 (1965); Whitman v. State, supra; Lopata v. State, 18 Md. App. 451, 307 A.2d 721 (1973). We find no such evidence in our independent review of the record.
. . . whether a consent to a search was in fact "voluntary" or was the product of duress or coercion, expressed or implied, is a question of fact to be determined from the totality of all the circumstances.Accord Johnson v. State, 30 Md. App. 280 (1976); Wilson v. State, 30 Md. App. 242 (1976); Whitman v. State, 25 Md. App. 428 (1975); Lopata v. State, 18 Md. App. 451 (1973). The same test, i.e., the "totality of the circumstances" has also been used over the years in determining the voluntariness of a confession.
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).
The State and appellants agree that the convictions of both appellants stand or fall on the validity of the consent. "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.
As previously stated, appellant and the other two escapees abandoned the '67 Ford in front of the Continental Motel some time after 9 p.m. on March 4th. The Crime Investigation Unit of the City of Cumberland vacuumed the vehicle in the early morning of March 5th, many hours before the arrest of appellant in Pennsylvania. There is no issue presented under Pennsylvania Rule 118; and appellant has no other grounds for objection, nor indeed any standing to object, since the car had been abandoned by him and had been impounded by Corporal McGowan on the evening of March 4th. See, Lopata v. State, 18 Md. App. 451 (1973). 4. Appellant's Oral Statement
One must establish that it is his own direct or derivative enjoyment of property or expectation of privacy that has been invaded before he may challenge the invasion. Walters v. State, 8 Md. App. 583, 261 A.2d 189; Palmer v. State, 14 Md. App. 159, 286 A.2d 572; Lopata v. State, 18 Md. App. 451, 307 A.2d 721; Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). We are not here concerned with the question of what is the appropriate burden of proof at a suppression hearing once a justiciable issue is properly before the hearing judge.