Theft trial evidence is ruled out by judge

February 24, 1994|By Dennis O'Brien | Dennis O'Brien,Sun Staff Writer

A judge yesterday ruled that evidence against a 40-year-old businessman accused of breaking into his former restaurant while police looked on could not be used at his trial because it was illegally obtained.

Anne Arundel Circuit Court Judge Warren B. Duckett Jr. granted a motion by Robert Franklin Miller that evidence seized from a Cadillac he borrowed and from a frame shop where he was having a diploma mounted could not be used at his March 22 theft trial.

In granting the motion, Judge Duckett agreed with Anne Arundel County Public Defender Alan R. Friedman, who argued that police seizures last summer of the restaurant receipts and the framed diploma violated Mr. Miller's rights against illegal search and seizure.

"We've got something called the Fourth Amendment, and we don't allow police officers to just go around and take things," Mr. Friedman said. "This issue is, where's the warrant? Why didn't they have a warrant?"

Assistant State's Attorney Robert Bittman had argued that both the restaurant receipts found in the Cadillac and the diploma were voluntarily handed over by the shopkeeper and the car owner, negating any need for a search warrant. "It was just good police work," he said.

Mr. Bittman declined to comment after the ruling.

The diploma, taken from a framing shop in Parole on July 13 by Cpl. Darryl Hagner, a county police officer assigned to the state's attorney's office, showed Mr. Miller as having earned a law degree from Louisiana Capital University.

Police say no such university exists.

The restaurant receipts were taken from a Cadillac owned by Bernadine T. Biniasz of Glen Burnie, who testified yesterday that she lent Mr. Miller the car in exchange for use of some land Mr. Miller claimed to have owned.

Mr. Miller is to be tried on misdemeanor breaking and entering and theft charges for allegedly breaking into the Bridgeview Restaurant in Eastport on May 24, 1993.

That March, state police said, Mr. Miller had entered into an agreement with Charles Ellenberger, a retired Howard County police officer from Ellicott City, to purchase the Bridgeview from Alan Foote, an Annapolis businessman.

But the deal fell through in early May, when Mr. Foote contacted Mr. Ellenberger. Mr. Foote claimed he wasn't getting payments promised from Mr. Miller and said he had been forced to change the locks on the restaurant twice since the purchase.

Mr. Miller admitted he was having troubles managing the restaurant, and agreed to relinquish his ownership interests at a meeting on May 18, police said.

The break-in occurred a week later. Mr. Miller asked Annapolis police to provide security for the move, telling them he wanted his restaurant supplies back and that he was worried a former partner might show up to cause trouble. He showed officers ownership papers that police later learned were outdated.

Mr. Miller hired two private security guards, eight movers, three U-haul trucks and a Glen Burnie storage locker and hauled away all of the restaurant's contents, Mr. Ellenberger later said.

Mr. Ellenberger found out about the break-in the next day, when his employees were blocked from re-entering the restaurant by two Wackenhut security guards.

Yesterday's ruling was the second victory in Anne Arundel Circuit Court for Mr. Miller, who is known in the Annapolis area as "Dr. Bob."

Mr. Miller had been charged with conspiracy to commit fraud for allegedly trying to set up a phoney diploma mill at his West Street offices.

But those charges were dropped after Judge Bruce C. Williams ruled that 40 boxes of evidence seized from Mr. Miller's offices, allegedly detailing plans to set up the Washington Chiropractic College, could not be used.

Judge Williams ruled that those documents were obtained after police obtained a warrant, signed by District Judge Michael E. Loney, that was issued without sufficient probable cause to believe a crime had been committed.

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