Ross v. State

475 A.2d 481, 59 Md. App. 251, 1984 Md. App. LEXIS 365
CourtCourt of Special Appeals of Maryland
DecidedJune 6, 1984
Docket494, September Term, 1983
StatusPublished
Cited by10 cases

This text of 475 A.2d 481 (Ross v. State) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ross v. State, 475 A.2d 481, 59 Md. App. 251, 1984 Md. App. LEXIS 365 (Md. Ct. App. 1984).

Opinions

BLOOM, Judge.

On the basis of stipulated testimony, the Circuit Court for Carroll County convicted appellant, Ira Ross, of unlawfully intercepting oral communications and of unnatural and perverted sexual practice. Ross was sentenced to a term of five years imprisonment for interception of oral communications and a consecutive term of ten years for perverted sexual practice.

Ross poses the following questions on appeal:

1. Whether the trial court committed error in denying appellant’s motion to suppress a pornographic videotape seized pursuant to a search and seizure warrant.
2. Whether the evidence was sufficient to convict the appellant of having willfully intercepted and recorded the private oral communication of another without consent.
3. Whether the sentence was illegal.

Factual Background

After his motion-to suppress evidence seized from his house was denied, the appellant agreed to proceed on a stipulation of testimony, in return for which the State entered a nolle pros as to several counts in one criminal information and two other informations were placed on the [255]*255stet docket. The State placed into evidence a videotape recording that showed the 49-year-old appellant engaged in fellatio with a 15-year-old boy who had been employed at appellant’s winery in Carroll County during the fall of 1978. The prosecutor informed the court that the young victim would have testified as to the following events which transpired over a twenty minute period:

That the Defendant asked him to take a break and go with the Defendant to his bedroom. That once in the bedroom, the Defendant told him to sit on the edge of the Defendant’s bed. That the Defendant after talking with him for a short period of time, asked to see his thing — referring to the witness’s penis. Whereupon, the Defendant pulled the witness’s pants down. That the Defendant then placed the witness’s penis in his mouth for a period of several minutes. That the Defendant then pulled down his pants and placed his penis in the witness’s mouth for a long time. That during this act, the Defendant ejaculated in the witness’s mouth.
That one of the reasons that the witness allowed this to happen was because he felt intimidated by the Defendant as an adult and by the fact that the Defendant often wore a gun around the winery.

Although the videotape depicted the appellant wearing a pistol attached to his belt, the trial judge noted that he did not believe the gun “really played that much of a role in the commission of the crime.” He stated, however, “There’s no question in my mind that the young boy was under total domination of the defendant.”

I. Suppression of Evidence

Pursuant to information received from a 13-year-old boy1 that the appellant had performed fellatio upon him after the boy was hired to work in the winery in 1980, the Maryland State Police obtained and executed a warrant authorizing [256]*256the search for and seizure of certain items believed to be located at appellant’s residence.

The application for the search warrant asserted that there was reason to believe that there was concealed at appellant’s winery certain “obscene, erotic and pornographic material which is in violation of the laws of Maryland and is evidence relating to the commission of a crime pertaining to aiding the commission of Article 27, Section 464A, second degree sexual offense and Article 27, Section 418, the possession with intent to exhibit obscene material.” The accompanying affidavit to support the application asserted that the 13-year-old complainant related that his employer, Ira Ross, had invited him to Ross’s bedroom and “showed him an obscene, pornographic and erotic magazine or publication, which had sexual language and photographs which showed men and women participating in sexual acts.” The photographs were shown to the victim to arouse him so that Ross could perform fellatio on him. The affiant, a state police officer with experience in investigating sex offenses, believed that the obscene material was used in furtherance of the second degree sex offense reported by the victim and was exhibited in violation of article 27, § 418. The warrant, in turn, described the property to be searched for and seized in the above quoted language of the application.

Armed with the search warrant and a warrant for Ross’s arrest, State Troopers Michael Haas and Rudolph Hansen and Assistant State’s Attorney Benjamin Love arrived at Ross’s home about 8:00 a.m. While Hansen held Ross in custody in the kitchen, Haas and Love began their search of the premises. In Ross’s bedroom they found a videotape recorder, videotape camera, and television set. They also found nine videotape cassettes in a dresser drawer. According to Haas, although Ross was specifically advised he need not comply with that request, he readily agreed to demonstrate the operation of the recording device. Ross went into the bedroom and activated the “play” mechanism on the recorder. The motion picture “Patton” appeared on the television screen. Trooper Haas held up three of the [257]*257videotapes he had found in the dresser drawer and requested that one of them be played. Ross, without objection, selected a tape bearing the handwritten notation or title “M and I” and inserted it into the recording device with a warning to the officers not to be shocked by what they saw. There then appeared on the television screen scenes of Ross and a woman engaged in various sexual activities. Ross told the officers that all of the tapes from the dresser drawer depicted him in sexual activities with various women.

Ross was then handcuffed and removed from the bedroom. Thereafter, Trooper Haas examined the eight remaining videotape cassettes and noted one that was labeled or titled “Jon and I Bob and I,” whereupon he inserted that cassette into the recording device and played it. That tape (the one introduced into evidence in the case sub judice) depicted Ross engaged in fellatio with a heavyset young male and later showed Ross engaged in fellatio with a boy between thirteen and fifteen years of age.

Underlying appellant’s contention that the court erred in denying his motion to suppress is the general rule explicated by the Court of Appeals in Brooks v. State, 235 Md. 23, 29, 200 A.2d 177 (1964), that “property other than that for which a search is being made under the authority of a search warrant cannot be seized under the authority of that warrant because it does not come within the description of the warrant.” See also, United States v. Place, — U.S. —, —, 103 S.Ct. 2637, 2641, 77 L.Ed.2d 110 (1983); Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979); Berger v. New York, 388 U.S. 41, 58, 87 S.Ct. 1873, 1883, 18 L.Ed.2d 1040 (1967); Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431 (1965).

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Ross v. State
475 A.2d 481 (Court of Special Appeals of Maryland, 1984)

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Bluebook (online)
475 A.2d 481, 59 Md. App. 251, 1984 Md. App. LEXIS 365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ross-v-state-mdctspecapp-1984.