Baker v. State

Gilbert, C. J., delivered the opinion of the Court. Representative James Madison introduced at the first congress, on June 8, 1789, sixteen (16) amendments to the Constitution of the United States. Four (4) of the amendments did not survive congressional debate, and two (2) failed because the States did not ratify them. The remaining ten (10), in substantially the same form as proposed by Madison, ¹³⁵ became known as “The Bill of Rights.” 1 Interestingly, one (1) of the suggested amendments that was defeated in the Congress would have prohibited “the states from infringing on freedom of conscience, press, and jury trial.” 2 The Bill of Rights was, in the beginning, a protection against the federal government but not the States.

Violations of the rights of the individual by the State were protected only to the extent provided in the State constitution or Declaration of Rights. 3 The Fourth Amendment, part of Madison’s original package, provides: “The right of the people to be secure in' their persons, houses, papers, and effects, against unreasonable searches and seizures, shall[ 4 ] not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Declaration of Rights adopted in Maryland afforded the people, through Article 26, protection against general warrants and required an oath or affirmation as a condition precedent to the issuance of a search and seizure warrant. Both the Fourth Amendment and Article 26, arose from the same historical background, Givner v. State, 210 Md. 484 , 124 A. 2d 764 (1956); Salmon v. State, 2 Md. App. 513, 235 A. 2d 758 (1967), and are to be read as being in pari materia. 5 Givner v. State, supra; England v. State, 21 Md. App. 412 , 320 A. 2d 66 (1974), aff’d, 274 Md. 264 , 334 A. 2d 98 (1975). Notwithstanding, the Supreme Court’s use of the Due Process Clause of the Fourteenth Amendment in Mapp v. ¹³⁶ Ohio, 367 U. S. 643 , 81 S. Ct. 1684 , 6 L.Ed.2d 1081 (1961), as the vehicle through which to apply the strictures of the Fourth Amendment to the States, and with it the “ ‘fruit of the poisonous tree’ ” doctrine, Wong Sun v. United States, 371 U. S. 471, 488 , 83 S. Ct. 407, 417 , 9 L.Ed.2d 441, 455 (1963), Maryland did not initially follow that doctrine. Mefford v. State, 235 Md. 497 , 201 A. 2d 824 (1964); Prescoe v. State, 231 Md. 486 , 191 A. 2d 226 (1963).

In those cases, the majority of the Court reasoned that the “poisonous tree” doctrine or exclusionary rule discussed in Wong Sun v. United States, supra, and Mapp v. Ohio, supra, did not apply to the States but was limited in its scope to federal proceedings. As a result of Mefford soA Prescoe, the courts of this State ignored the federal exclusionary rule until 1974. At that time, the Court of Appeals, in Everhart v. State, 274 Md. 459 , 337 A. 2d 100 (1975), rev’g, 20 Md. App. 71 , 315 A. 2d 80 (1974), made it unmistakable that Michigan v. Tucker, 417 U. S. 433, 445 , 94 S. Ct. 2357, 2364 , 41 L.Ed.2d 182, 193-94 (1974) and Alderman v. United States, 394 U. S. 165 , 89 S. Ct. 961 , 22 L.Ed.2d 176 (1969), erased the doubt that had existed, and the “ ‘fruit of the poisonous tree’ ” doctrine, Wong Sun v. United States, 371 U. S. at 488 , 83 S. Ct. at 417 , 9 L.Ed.2d at 455 , became the law of Maryland. The primal thrust of this appeal is the application vel non of the exclusionary rule — the “fruit of the poisonous tree” doctrine — to the judicial identification of the appellant.

After a hearing on a motion to suppress, Judge Shirley B. Jones, in the Criminal Court of Baltimore, ruled that the arrest of the appellant, William Baker, alias Orlando Little, was not founded on probable cause. She, therefore, excluded from the case any identification of appellant, based upon a photograph made of him subsequent to that arrest. While helpful to appellant, the exclusion of the photographic identification was more of a panache than a victory because the judge found that there was ample evidence that the judicial identifications made by the witnesses were bottomed on evidence that was independent of the baneful photograph. Appellant, however, contends that his illegal arrest precludes any identification of him, so that he should in no way be ¹³⁷ connected with the offense and must be freed.

The argument advanced by appellant may be styled as the “but for” approach. “But for” the illegal arrest he would not have been caught and, ergo, could not have been identified as the culprit. Before explaining why we reject that absonant argument with its iniquitous result, we set out the fabric from which the appeal has been tailored. At about 2:45 p.m., on July 23, 1975, Howard Katz an insurance agent, was robbed by two (2) men in the 200 block of East Chase Street in Baltimore City. One of the felons was armed with a sawed-off shotgun.

When the police arrived, the victim and two witnesses, gave descriptions of the armed robber. Phillip Hawkes, a witness did not actually see the robbery, but he “got a real good look” at the person who carried the weapon as that person left the area at a “dog’s trot.” Katz was within a few feet of the robber for one (1) to five (5) minutes and looked directly at the robber’s face. Scott, a witness and a former Baltimore County police officer, who was with Katz at the time stared directly at the robber for a period of “no less than one and no more than five” minutes. Pursuant to a tip from an unidentified informant, the appellant was arrested on July 29, 1975, at the home of his girl friend.

The arrest was made without the benefit of a warrant. In holding, as we have already noted, the arrest to be illegal, the trial judge believed there was a lack of probable cause because the information passed on to the arresting officer by the informant failed to pass muster under Aguilar v. Texas, 378 U. S. 108 , 84 S. Ct. 1509 , 12 L.Ed.2d 723 (1964). Moreover, the judge was not satisfied that there was knowing consent to the search of the girl friend’s apartment, where appellant was found, nor that there were exigent circumstances which excused the obtaining of a search warrant. Prior to the arrest and booking of the appellant, his name was not known to the police. 6 The next day, appellant’s photograph was shown to Katz and Scott, who identified it ¹³⁸ as that of the perpetrator of the robbery.

Thereafter, Katz and Scott saw the appellant several times in various court proceedings. Hawkes saw the appellant in the City Jail where he was confined while awaiting trial. 7 The two (2) victims and Hawkes testified, during the hearing on the motion to exclude any in-court identification, that their identifications would be based solely on their recollection of the incident and not on any subsequent viewing of appellant or his photograph. During the trial, Katz, Scott, and Hawkes made in-court identifications of the appellant. Past Maryland cases have held that in-court identifications resulting directly from illegal arrests are not excluded from evidence.

Those decisions, however, must be re-evaluated in light of both the subsequent adoption by the Court of Appeals in Everhart v. State, supra, of the “fruit of the poisonous tree” exclusionary rule and of the recent Supreme Court decisions related to that rule. Our reappraisal leads us to conclude that when an illegal arrest is made in good faith and is neither an investigatory nor sham arrest, judicial identification is not to be barred on the basis of its being the “fruit of the poisonous tree.” Two (2) 1968 decisions of this Court held that in-court identifications were not precluded by the illegal arrests of the individuals concerned. Boucher v. Warden, 5 Md. App. 51 , 245 A. 2d 420 (1968); Hartley v. State, 4 Md. App. 450 , 243 A. 2d 665 (1968), cert. denied, 251 Md. 749 (1969), cert. denied, 395 U. S. 979 , 89 S. Ct. 2136 , 23 L.Ed.2d 768 (1969). In Boucher, supra, we said that, notwithstanding the in-court identification, “no fruits of the arrest were received in evidence against the applicant. ...” Boucher v. Warden, 5 Md. App. at 55 , 245 A. 2d at 423 .

Those cases obviously were decided prior to Maryland’s belated recognition in Everhart, supra, of Wong Sun, supra, and its siblings. We applied Wong Sun, supra, through Everhart, supra, in Ryon v. State, 29 Md. App. 62 , 349 A. 2d 393 (1975), aff’d, 278 ¹³⁹ Md. 302, 363 A. 2d 243 (1976). The exclusionary rule of Wong Sun, supra, was explicated in In re Appeal No. 245, 29 Md. App. 131 , 349 A. 2d 434 (1975) as follows: “On 14 January 1963 the Supreme Court of the United States decided Wong Sun v. United States, 371 U. S. 471 [ 83 S. Ct. 407 , 9 L.Ed.2d 441 (1963)]. Nearly half a century before, the Court held that evidence seized during a search unlawful under the Fourth Amendment could not constitute proof against the victim of the search.

Weeks v. United States, 232 U. S. 383 [ 34 S. Ct. 341 , 58 L. Ed. 652 ] (1914). The exclusionary prohibition extended as well to the indirect as the direct products of such invasions. Silverthorne Lumber Co. v. United States, 251 U. S. 385 [ 40 S. Ct. 182 , 64 L. Ed. 319 ] (1920). The exclusionary rule had traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion.

It followed from the Court’s holding in Silverman v. United States, 365 U. S. 505 [ 81 S. Ct. 679 , 5 L.Ed.2d 734 ] (1961), that the Fourth Amendment may protect against the overhearing of verbal statements as well as the more traditional seizure of tangible evidence.” 29 Md. at 140, 349 A. 2d at 439. Long before the Fourth Amendment was held, in Mapp v. Ohio, supra, to apply to the States, Mr. Justice Holmes, in Silverthome, supra, wrote that the exclusionary rule mandates not only that evidence obtained in violation of the tenets of the Fourth Amendment may “not be used before the Court but that it shall not be used at all.” 251 U. S. at 392 , 40 S. Ct. at 183 , 64 L. Ed. at 321 . “The Magnificent Yankee,” 8 however, penned a caveat that declared, “[o]f course this does not mean that the facts thus obtained become sacred and inaccessible.” Id. ¹⁴⁰ The Wong Sun Court went further and stated: “We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ Maguire Evidence of Guilt, 221 (1959).” 371 U. S. at 487-88 , 83 S. Ct. at 417 , 9 L.Ed.2d at 455 . The three (3) generally recognized exceptions to the application of the fruit of the upas tree are: 1) where the evidence sought to be introduced has an independent source, or 2) the evidence would have inevitably been discovered, or 3) where “the connection between the lawless conduct of the police and the discovery of the challenged evidence has become so attenuated as to dissipate the taint.” In re Appeal No. 245, 29 Md. App. at 140, 349 A. 2d at 440 .

See Bartram v. State, 33 Md. App. 115 , 364 A. 2d 1119 (1976), aff’d, 280 Md. 616 , 374 A. 2d 1144 (1977). See also Washburn v. State, 19 Md. App. 187 , 310 A. 2d 176 (1973). For the purpose of determining whether the rule excluding evidentiary “fruit of the poisonous tree” should be applied to a particular situation, the Supreme Court has adopted a balancing test. The Court, in Stone v. Powell, 428 U. S. 465 , 96 S. Ct. 3037 , 49 L.Ed.2d 1067 (1976), said that “[t]he primary justification for the exclusionary rule ... is the deterrence of police conduct that violates Fourth Amendment rights.” 428 U. S. at 486 , 96 S. Ct. at 3048 , 49 L.Ed.2d at 1083 .

The deterrent effect of the exclusionary rule must be weighed against the harm which society suffers when the