Bellam v. State

Henderson, J., delivered the opinion of the Court. The appellant was convicted by the court without a jury under indictments in seven distinct cases of breaking and entering, with intent to commit a felony in six cases and of breaking and entering with intent to commit a misdemeanor in the seventh. These appeals are from three of the convictions, in which the sentences were six years each to run consecutively, thus imposing a total sentence of eighteen years. The first question raised concerns the legality of the search of the appellant’s home and the seizure therein of certain tools offered in evidence.

The facts are virtually undisputed. The seven crimes under investigation were committed between November 27 and December 27, 1960. Shortly after the latter date Bellam, who had been under the probationary supervision of a probation officer, Mr. Siegert, fled the State leaving his wife and children behind. Mr. Siegert went to see Mrs. Bellam and told her the police had information that the tools used in some ³⁷⁰ of the burglaries were located in her house, and asked her permission to make a search.

She at once agreed. She said she had no knowledge of any tools being in the house, but she had no objection to “the place being looked over relative to< this.” Armed with this prior consent but without a search warrant, Mr. Siegert, accompanied by the police officers, went to the home during daylight hours on February 8, 1961. He introduced the officers to Mrs. Bellam, and she asked them in. Much to her surprise the police located a cache of tools hidden beneath the third tread of the stairway leading to the second floor.

The appellant objected to the admission of these tools in evidence. There was not only testimony that these tools would have been suitable for burglary and safe-cracking, but also that dust found on them was characteristic of firebrick safe material found at the scene of several of the burglaries. On taking the stand, the appellant denied that he owned the tools, or that he had any knowledge of the existence of the compartment under the stairs in which they were found. We think the search was not unreasonable.

We find nothing in the record to support the contention that Mrs. Bellam’s consent was coerced. Mr. Siegert’s testimony, and that of the other officers, was not contradicted in any way. The cases of Amos v. United States, 255 U. S. 313 and Johnson v. United States, 333 U. S. 10 , are distinguishable on the facts. The mere fact that it might have been possible to obtain a search warrant is not controlling.

United States v. Rabinowitz, 339 U. S. 56, 66 . While Rabinowitz has been distinguished in later cases it has not been overruled. See Chapman v. U. S., 365 U. S. 610 (particularly Justice Frankfurter’s concurring opinion at 618-19), and Wong Sun v. U. S., 371 U. S. 471, 480 . We have said that the mere fact that the request is made by officers is not enough to resolve the issue as to whether consent was freely given.

Gault v. State, 231 Md. 78, 81 ; Armwood v. State, 229 Md. 565, 569 . As the joint occupant of the premises, even if the husband had not abandoned them (cf. Buettner v. State, 233 Md. 235 ), Mrs. Bellam was entitled to give consent and to bind her co-occupant in so doing. The point has not been extensively discussed in the Maryland cases. In Franklin v. State, 208 Md. 628, 633 , Judge ³⁷¹ Hammond,