Cleveland v. State

²⁰⁶ Orth, J., delivered the opinion of the Court. THE ADMISSION OF EVIDENCE OBTAINED BY A SEARCH AND SEIZURE INCIDENT TO AN ARREST — THE FUNCTIONS OF THE CO URT AND JUR Y. In Price v. State, 7 Md. App. 131 we held that the admissibility of evidence obtained by a search and seizure warrant claimed to be invalid was a matter exclusively for the court. We said, at 143: “Thus in a jury trial, when the issue is properly raised by objection or motion to suppress or exclude evidence claimed to have been so unlawfully obtained, and the issue had not been determined prior to trial or the issue is entertained by the trial court upon the grant of a hearing de novo after it has been determined prior to trial, the matter shall be determined out of the presence of the jury. * * * If the evidence is found to have been unlawfully obtained, it shall be excluded. If the evidence is found to have been lawfully obtained, it shall be admitted for the jury’s consideration, and no evidence on the issue is required to be presented to the jury.” We also said: “While the admissibility of articles obtained by a warrantless arrest [or by an arrest under authority of an arrest warrant] must be determined by the trial court on evidence of the matter of the validity of the arrest, out of the presence of the jury, we do not now decide, upon a finding of the court that the articles are admissible, whether evidence as to probable cause for the [warrantless] arrest [or evidence as to the validity of the arrest warrant] must then be submitted to the jury for its ultimate determination.” at 143-144.

We promised to decide the point when it was squarely before us. It is now squarely before us. The judge presiding at the jury trial of the appellant in the Circuit Court ²⁰⁷ for Kent County, having found, on evidence adduced out of the presence of the jury, that articles obtained by a search and seizure incident to a warrantless arrest were admissible because the arrest was legal, refused to give requested instructions to the jury pertaining to probable cause for the arrest, including an instruction that “if the arrest of the defendant was illegal the articles seized as incident thereto were improperly admitted into evidence and cannot be considered by you.” There are established rules of law and adopted rules of procedure relevant to the issue. The basic rule is that the admission or exclusion of evidence is within the sound discretion of the trial court.

Tomolillo v. State, 4 Md. App. 711, 716 . Although Md. Rule 522, made applicable to criminal causes by Md. Rule 725 f, pertains to objections to the admissibility of evidence generally, Md. Rule 729 relates specifically to the suppression, exclusion, or return of property claimed to have been obtained by an unlawful search or seizure, § a. It prescribes procedures for the challenge of the admission of such property, §§ b and c, the procedure for the determination of the issue upon challenge, § d, and provides for the preservation of the issue on appellate review, §§ e and f, and for the binding effect of a pretrial ruling, § g. We think it clear that Rule 729 applies to any evidence obtained by a search or seizure.

Thus it applies when the search or seizure is under the authority of search warrant, or as incident to an arrest under an arrest warrant, or as incident to a warrantless arrest, or, when the search or seizure is not under the authority of a warrant or incident to an arrest but is otherwise reasonable. See Winebrenner v. State, 6 Md. App. 440, 443 ; Hall v. State, 5 Md. App. 394 , note 1 at 396; St. Clair v. State, 1 Md. App. 605 . 1 ²⁰⁸ The rationale of our holding in Price v. State, supra, that the admissibility of evidence obtained by a search and seizure warrant claimed .to be invalid was a matter exclusively for the court, was that Rule 729 recognized and adhered to the basic rule of law that the admissibility of evidence was a matter of the trial court’s sound discretion. Rule 729 provides that the matter may be determined prior to trial, § d, and if the evidence is ruled admissible, such ruling may be considered by the trial court as binding, § g 2. Whether the matter is determined preliminarily or during trial, the hearing thereon shall be out of the presence of the jury, § d 2.

We see nothing in the Rule from Which we could conclude that after the court has found that the evidence seized was admissible, the jury has the ultimate determination of whether or not the search or seizure was reasonable. Thus if the property was obtained under a search and seizure warrant, the affidavit on which the warrant is based does not go to the jury; if the property was obtained by a search or seizure incident to an arrest, evidence as to probable cause for the issuance of an arrest warrant or for a warrantless arrest does not go to the ²⁰⁹ jury; if the property was obtained without a search warrant or an arrest, evidence as to the reasonableness of the search and seizure does not go to the jury. We have found it is not within the contemplation of Md. Rule 729 that the determination of the admissibility of evidence obtained by a search and seizure is a matter for the jury on the question of whether or not the search and seizure were reasonable. It may appear, at first glance, that the question of the legality of a search or seizure is comparable to the question of the voluntariness of a confession and that since the ultimate determination of the voluntariness of a confession is for the jury, so should the ultimate determination of the legality of a search or seizure.

But we noted in Price , at 143, that the matter of the admissibility of evidence claimed to have been unlawfully seized is to be distinguished from the question of the admissibility of a confession, where the question of its voluntariness is first determined by the court and upon being found voluntary and thus admissible, the evidence as to its voluntariness is then submitted to the jury. See Barnhart v. State, 5 Md. App. 222. This is so because of the fundamental difference between a confession and evidence obtained by a search and seizure. The weight to be given any evidence, be it a confession or otherwise, is for the trier of fact.

Even if a confession is ruled by the court to be prima facie voluntary and thus admissible, it is the function of the jury whether or not to believe it. Day v. State, 196 Md. 384, 399 . The voluntariness of the confession is an indispensable factor in the determination of whether or not it is to believed. Its integrity would be seriously affected were it obtained by coercion or threat, or improper inducement or without the assistance of counsel whose presence was not properly waived.

Thus, in order for the jury to give weight to a confession, that is to ascertain whether it was true, so as to properly consider it in arriving at the guilt or innocence of the accused, they must have before them the evidence as to its voluntariness. Because the voluntariness of a confession is es ²¹⁰ sential to the jury’s function in ascertaining guilt or innocence even when it is properly submitted to them, its voluntariness is a question of fact to be found by the jury beyond a reasonable doubt before they may consider it. 2 Barnhart v. State, supra, at 225. In other words the voluntariness of a challenged confession is an essential element of the State’s case and must be established by it beyond a reasonable doubt once the confession is shown to be admissible by prima facie proof that it' was voluntary. On the other hand, the integrity of evidence obtained by a search and seizure is not affected by the reasonableness vel non of its seizure.

Once the trial court has found it to be admissible (this finding upon proper challenge is reviewable on appeal, Md. Rule 729 f), whether or not it was seized under a valid search warrant, or incident to a valid arrest or by a search and seizure otherwise reasonable, plays no part in the weight to be given it. The reasonableness of the search or seizure by which evidence was obtained is not an essential element in arriving at guilt or innocence; the resolution of the question of reasonableness merely determines whether the evidence shall or shall not be submitted to the jury and once this is determined by the court there is nothing for the jury to consider with regard to its admission. 3 Thus the reasonable doubt standard is not applicable; the rule of probable cause in determining the legality of a search or seizure is, as the term indicates, one of “probability.” See Hall v. State, 5 Md. App. 394 , ²¹¹ 896-398; Gaudio and Bucci v. State, 1 Md. App. 455, 463-464 . In short, the validity of a search or seizure relates only to the admissibility of the evidence obtained thereby and is no more for the determination of the jury than are other matters pertinent to the admission or exclusion of evidence otherwise obtained. Therefore, that the jury judge the law as well as the facts, plays no part, just as it plays no part in the determination of the admission of any other evidence.

We do not reach in this opinion the circumstance in which the question is not per se the reasonableness of a search or seizure vel non but in which the question is, rather, despite the unreasonableness of the search or seizure, whether it was made with the consent of the accused. An accused may waive the constitutional guarantee against an unreasonable search or seizure; he has the perfect right to consent to a search or seizure even though it may be unreasonable. Hubbard v. State, 195 Md. 103, 106 . The Court of Appeals in Hubbard , held that where there was evidence adduced by the accused that the search was made over his objection and evidence adduced by the State was that the accused permitted the police officers to make the search, whether the fruits thereof should go to the jury is in the first instance a matter for the court. “If the court is of the opinion that the accused freely and voluntarily consented to the search, and there was no coercion or fear brought to bear upon the traverser by the police, the matter should be submitted to the jury, and it is then for the jury to say, on all the facts, whether the traverser waived [his] right [he] might have to object to the search.” 195 Md. at 107 .

See also Payne v. State, 207 Md. 51, 54-55 , and Wilson v. State, 239 Md. 245 . Thus Hubbard applied as to the disputed consent to a search the same rule followed as to the disputed voluntariness of a confession and it may well be that the two issues are comparable. Each in the ultimate is a factual determination whether the accused, acted freely and voluntarily. But we do not now decide the impact of Rule 729 on the holding in Hubbard, Payne ²¹² and Wilson as to the respective functions of the court and jury on the question of a consent to a search.

However, in Wilson the Court, for the first time, extended the Hubbard rule with respect to consent to a search to encompass as well the reasonableness per se of a search. It said that Hubbard “settled all doubts as to the respective functions of the court and jury in cases where there is a conflict of evidence as to whether incriminating tangible evidence was seized as the result of an illegal search, or with the consent of the accused.” at 252. Its precise holding was that defense counsel had the right to argue to the jury not only the apparent consent to the searches, but also the legality of the arrest. At 257.

Wilson was decided 22 June 1965. Rule 729 was added 23 June 1967, effective 1 Sept. 1967. 4 Therefore, Wilson was decided without the benefit of the Rule and we find nothing in the Rule as adopted to indicate that the intention was to conform to the holding in Wilson as to the function of the jury with regard to the reasonableness per se of a search or seizure. On the contrary, as hereinbefore stated, we believe that the Rule intended that the issue was a matter for the trial court exclusively and that its decision thereon was binding. We find support for our belief in Mace Produce v. State’s Attorney, 251 Md. 503 .

The Court said- that its mandate that it endeavor to “harmonize” different rules dealing with the same subject matter applies with equal force to the various sections of the same rule. Section g 1 of Rule 729 clearly provides that if a motion for the suppression or exclusion of evidence obtained by a search or seizure is granted prior to trial such evidence “should not be offered in evidence by the State at the trial on the merits in the criminal proceeding.” Section g 2 provides that when such motion or petition is denied prior to trial of the criminal case, the pretrial ruling shall be binding at ²¹³ the trial unless the trial judge, in the exercise of his discretion grants a hearing de novo on the defendant’s renewal of his motion or objection. 5 Without question the jury has no function under § g 1 as to whether such evidence is to be admitted when the court grants the motion to suppress or exclude it. To be in harmony with § g 1 the jury would have no function as to whether such evidence is to be admitted when the court denies the motion to suppress or exclude it under § g 2 and we see nothing in § g 2 to indicate to the contrary. We hold that the admissibility of evidence obtained by any search or seizure claimed to be invalid is a matter exclusively for the trial court.

If the evidence is found by the trial court to have been unlawfully obtained, it shall be excluded. In a jury trial, if the evidence is found by the trial court to have been lawfully obtained, it shall be submitted to the jury and no evidence pertaining to the legality of the seizure shall be presented to the jury. The jury considers the evidence so admitted, along with other evidence before them, in arriving at their verdict. Thus the trial court here, having found the arrest of the appellant to be legal, did not err in refusing to instruct the jury as requested with regard to the validity of the appellant’s arrest and the admissibility of the evidence seized incident thereto. ²¹⁴ THE ARREST In the instant case there was no pretrial motion to suppress or exclude evidence as authorized by Md. Rule 729 b 1.

At the trial all the evidence was taken in the presence of the jury. The State first adduced evidence with respect to the arrest of the appellant. The Sheriff of Kent County testified that about 8:00 P.M. on 9 November 1968 he received a complaint from LeRoy Rex Crosby that the Rock Hall Liquor Store had been held up “by a negro male approximately six feet — .” At this point objection was made and sustained on the ground that the witness could “only give the nature of the complaint and not the hearsay evidence.” It was elicited from the witness that he obtained a description of the robber, that he alerted two deputy sheriffs and two troopers, giving them the description given him by the victim and that he tried to advise the town officer of Rock Hall by radio of what had happened. What description the Sheriff received and what description he gave the other officers was not revealed.

Corporal Franklin O. Boulter of the Maryland State Police was one of the officers the Sheriff alerted. He said he received a telephone call from the Sheriff about 8:00 P.M. on 9 November at his home in Rock Hall. He received a description of the man who committed the holdup and “started to proceed to the holdup scene.” About one-half mile from his home he observed “a colored male walking briskly across the laundromat parking lot which is immediately in front of Boundary Avenue as you enter Route 674 or the old road going into Rock Hall * * * He attracted my attention in that he did fit the description given me by the Sheriff. The man appeared to be approximately five feet eleven, had on a dark jacket, dark pants.

He was walking briskly toward the rear of the laundromat in what I consider a furtive manner.” Boulter drove into the parking lot, stopped the car in such position that the headlights would shine on the man, “quickly got out of the police car and approached the ²¹⁵ man and advised him he was under arrest for an investigation of a holdup.” 6 Boulter then “patted” the appellant’s pockets, “felt numerous rolls of what felt to be coins. I then ran my hand in his right side pants pocket and came out with a roll of money. I then searched his other pockets and found his pockets to contain a quantity of paper money some of which was in rolls with rubber bands, some loose.” He then placed handcuffs on the appellant and put him in the police car. At first Boulter was going to take him to the liquor store to have Crosby identify him but on second thought felt it would be better to have a lineup at a later time and to take him to Chestertown to the State Police office.

At the State Police office a more thorough search was made of the appellant’s person and coins and paper money and two checks, one made by Lois Wood payable to cash in the amount of $11.32 and the other payable to Kent County Liquor Control Board in the amount of $50.59, were found. The total amount of money seized from the appellant’s person was $1084.92. On the way to the office a stocking cap which the appellant had on under his hat was seized and after the search of his person at the office his trousers, jacket and sweater were seized. The articles seized from the person of the appellant were received for identification. ²¹⁶ Robert Joiner, Chief of Police, Rock Hall Police Department, testified that he received a call from the Sheriff’s office by monitor radio on 9 November about 8:00 P.M. “stating that the liquor store in Rock Hall had been robbed.

I immediately went to the liquor store and found Mr. Crosby as the clerk of the dispensary. I asked him if the store had been robbed because I didn’t believe it because I was parked just across the street at the Acme lot at that particular time and he said, yes it had, and I asked him who had robbed it and he told me a colored man. I asked him how he was dressed and he said he was dressed in dark clothes.” At this point the State’s Attorney said: “Well now, you really shouldn’t testify as to what he said out of the presence of the defendant. You can state the complaint.” The record then shows that as a result of a conversation with Crosby, the Chief proceeded in the direction Crosby told him the robber had gone.

He described the route he took and said he stopped in a gas station, received certain information from the manager, pulled out on Sharp Street and saw the appellant coming out of a tavern. He approached the appellant and told him he wanted to talk to him. The appellant got in the police car “on his own accord,” saying, “Mister, carry me home.” The appellant would not talk and the Chief called a CB operator in Rock Hall over the car radio and asked that the Sheriff be notified “that I had a subject in my car that could be the subject we were looking for.” The appellant got out of the.car. “Corporal Boulter signed on the air that he was in service. I didn’t have nothing whatsoever to hold this man for * * * I didn’t proceed to try to hold this man whatsoever.” He followed the appellant and arrived on the scene of his apprehension just after Boulter placed him under arrest “for investigation * * * for armed robbery.” After Boulter left with the appellant the Chief went back to where the appellant had gotten out of the Chief’s car.

At that place, in a ditch, he found a wallet containing $21. LeRoy Crosby, the victim of the robbery, 78 years of ²¹⁷ age, a temporary employee of the liquor store, testified that at 7:58 P.M. on 9 November “a colored chap” came into the store. “He had a mask down just above his mouth. He could talk without talking through the mask. He had a gun in his