Drouin v. State

²⁷⁵ Prescott, J., delivered the opinion of the Court. Having been found guilty by the Circuit Court for Anne Arundel County, sitting without a jury, on the first two counts of each of two separate indictments, after consolidation by agreement for the purposes of trial, and being sentenced to confinement as a result thereof, the defendant appeals. The first indictment contained three counts, charging him with burglary, larceny and receiving stolen goods; the second, likewise in three counts, charged him with burglary, statutory theft and receiving stolen goods. No question is here involved concerning the counts that charged him with receiving stolen goods.

Harvey J. Collinson, his wife and daughter left their home located at 604 S. Crain Highway, Glen Burnie, Maryland, around 7:00 P.M. on May 22, 1959, and returned home that same evening at approximately 10:00 P.M. They then discovered that someone had broken into and entered their home during their absence. Upon entering their home, it appeared to have been ransacked; someone had apparently rifled their bureau drawers and scattered the clothing that had been therein. Shortly thereafter, Collinson telephoned the Fern-dale Police Station and reported the breaking and entering. Three police officers drove to the Collinson home sometime after the telephone call, but prior to midnight.

They investigated the premises and were told by Collinson that a watch, a .22 caliber pistol and a Ronson lighter were missing. During this period of investigation, Sergeant Gleim received information from several people that a person described as the appellant was a boarder in the house next door to the Collin-son’s and was seen about 8:00 P.M. on May 22, 1959, * * act[ing] in a suspicious manner, seemed to be retreating to hiding places when anybody approached or cars came up and down the Crain Highway with bright lights.” Shortly after midnight, in the early morning of May 23, 1959, a taxi-cab pulled up in front of the house next door (where the appellant had a room) and the appellant was seen getting out of the cab, but apparently changed his mind and got back into the cab. The cab then made a U-turn and headed back in the direction from whence it had come. Officers Gleim and Jager got in one patrol car and Officer Golebiewski operated the ²⁷⁶ other car.

One squad car overtook the cab and forced it to come to a stop by pulling in front of it and the other closed in behind it. The three officers approached the cab and the appellant got out of the cab and was advised by Officer Gleim that he was under arrest. They proceeded to search the appellant’s person and the cab. They seized articles of personalty which were later identified as articles missing from the Collinson house and the residence of one Alvin Wolfe, which had also been broken and entered the same night.

The officers failed to find a diamond ring reported later to be missing by the Collinsons. Subsequent to the appellant’s arrest, the breaking and entering of the Wolfe residence was reported. Some of the articles seized were later identified by Mr. Wolfe as being the articles missing from his house. The appellant did not make any statements of admission or confession.

He was indicted by the grand jury and arraigned before the Circuit Court of Anne Arundel County, and pleaded not guilty in each case. Before his trial, the court appointed counsel to defend him, who requested and was granted permission to withdraw appellant’s pleas in order to submit two motions in writing: a motion to dismiss the indictments and a motion to suppress the evidence. The court overruled the motion to dismiss and postponed its ruling on the motion to suppress until some appropriate time during the course of the trial. During the trial the court overruled appellant’s motion to suppress the evidence and at the termination of the State’s case, the court overruled the appellant’s motion for directed verdicts on each and every count.

It is from these rulings that this appeal is taken. I The first count of each indictment charged that the defendant, “feloniously and burglariously did break and enter the dwelling house,” etc. The appellant objects to the use of the word “feloniously,” contending that the offenses of which he was accused in the first counts were misdemeanors; therefore his motion to dismiss them should have been granted. Whittington v. State, 173 Md. 387 , 196 A. 314 . His entire argument in this regard is based upon a state ²⁷⁷ ment in State ex rel.

Copeland v. Warden, 194 Md. 717, 718 , 70 A. 2d 813 , (1950), a habeas corpus proceeding, wherein this Court said: “Burglary, under the Maryland statute, Article 27, Section 33, is not a felony. Bowser v. State, 136 Md. 342 , 344 1 * * The accused here was indicted under Code (1957), Article 27 [all references hereafter made to the Codes will be to Article 27, unless otherwise specified], Section 30. At the time of the decision in Copeland, (1950), this Section 30 was Section 33 of the 1939 Code, which had not at that time been supplanted; hence, if the Court were, in reality, referring to the 1939 Code, it would lend considerable substance to the appellant’s contention. However, it seems clear that the Court, in the Copeland case, was referring to Section 33 of the Code of 1912, which was then Section 34 of the 1939 Code.

It supported the statement that “burglary, under the Maryland statute, Article 27, Section 33, is not a felony” by the immediate citation of the Bowser case, which specifically dealt with Section 33 of the 1912 Code [Section 32 of the 1957 Code], and held that the offenses described therein constituted misdemeanors and not felonies. Moreover, Section 30 of the 1957 Code, under which the defendant was indicted reads: “Every person, his aiders, abettors and counsellors, who shall break and enter any dwelling house in the nighttime with the intent to steal, take or carry away the personal goods of another of any value therefrom shall be deemed a felon and shall be guilty of the crime of burglary.” It is immediately noted that the statute explicitly says that whoever violates it shall be deemed a felon and shall be guilty of burglary. A felon is a person who has committed a felony, Black’s Law Dictionary (4th Ed.), p. 743, Webster’s New International Dictionary of the English Language (2nd Ed., ²⁷⁸ 1953), p. 931, and burglary was one of the common-law felonies. We have no hesitation in concluding that this Court in the Copeland case, in the sentence quoted, referred to Section 33 of Article 27 of the 1912 Code, and that the offense described in Code (1957), Article 27, Section 30, constitutes a felony.

II In this assignment of error, the appellant asks us to rule that his motion to suppress the evidence taken from the accused at the time of his arrest should have been granted on the ground that his arrest was unlawful and the evidence obtained as a result of this unlawful arrest should not be used against him at his trial. As evidence is admissible against an accused in Maryland whether lawfully obtained or not in felony cases, Davis v. State, 189 Md. 640, 645, 646 , 57 A. 2d 289 , this objection could only be aimed at the misdemeanor count, and the appellant limits this claim of error to the “admissibility of that evidence (the evidence taken from the accused as a result of his search after arrest) as applicable to the second count (statutory theft)” of the second indictment, relying upon Code (1957), Article 35, Section 5, [The Bouse Act]. As we have held above that the appellant’s motion to dismiss the burglary counts was properly overruled, he stands properly convicted of burglary under the second indictment and sentenced to one year’s confinement for the same; so, from a practical point of view, even if he be successful in this contention, it will avail him little relief. However, as burglary and theft are separate and distinct offenses, and the defendant should not be improperly convicted of any offense, we shall consider and determine the question.

There can be little doubt that a police officer may lawfully arrest a person when he has reasonable ground to suspect that a felony has been committed, whether or not in his presence or view, and reasonable ground to believe the arrestee has committed it. Mason v. Wrightson, 205 Md. 481, 486 , 109 A. 2d 128 ; Kauffman, The Law of Arrest in Maryland, 5 Md. L. Rev. 125 , 159. And, after a lawful arrest has been made, the officer, as an incident thereto, may search the ²⁷⁹ offender and seize any evidence of the crime. Mason v. Wrightson, supra, and cases cited.

At the trial, the State attempted to show that the arresting officers had reasonable grounds to suspect that a felony had been committed and that the appellant was the guilty party, in order to establish a lawful arrest so that the evidence obtained by them, in a search incident thereto, would be admissible against the accused relative to the misdemeanor count as well as the counts that charged felonies. 2 To this effect, the State offered proof that the officers knew the Collinson home had been burglarized and certain personal property stolen therefrom. The officers then testified that they had been informed by certain neighbors of the accused (he roomed next door to the Collinsons) that he had been seen in the rear of the Collinson home shortly after the Collinsons left it on the evening of May 22 acting in a suspicious manner which we have previously described. As stated above, this evidence was offered for the specific purpose of establishing “probable cause” for the subsequent arrest of the accused. The attorney for the defendant then asked: “Who gave you this information?” The officer replied: “I’d rather not reveal that unless I have to.” The court immediately said: “You don’t have to tell us. * * Professor Wigmore says 3 a genuine privilege for communications, on the fundamental principle of privilege, must be recognized for the communications made by informers to the Government; because such communications ought to receive encouragement, and because that confidence, which will lead to such communications, can be created only by holding out exemption from a compulsory disclosure of the informant’s identity.

In this statement, he is supported by the cases and text-writers alike. See McCormick, Evidence, Section 148; 3 Wharton's Criminal Evidence, (12th Ed.), Section 795; McCoy v. State, 216 Md. 332 , 140 A. 2d 689 ; Roviaro v. United States, 353 U. S. 53, 59 (1957); Sorrentino v. United ²⁸⁰ States, 163 F. 2d 627 (C. A. 9th, 1947). Additional cases will be cited later. But this statement from Wigmore is the general rule; and it is subject to certain limitations and exceptions, inherent in its logic and its policy, that are as well established as the rule itself.

Professor Wigmore (Section 2374) lists four such limitations, and, in the instant case, we are concerned only with the fourth, namely, that “[e]ven where the privilege is strictly applicable, the trial court may compel disclosure, if it appears necessary in order to avoid the risk of false testimony or to secure useful testimony.” Professor McCormick (Section 148) expresses the same principle in slightly different language by saying that when the privilege is asserted by the State in a criminal prosecution, and the evidence of the identity of the informer becomes important to the establishment of the defense, the court will require the disclosure, and, if it be still withheld, that the prosecution will be dismissed. Wharton (Section 795) states that the general rule is one of policy which will be followed unless it conflicts with a rule of justice, with the distinction being materiality. When the name of a person from whom a police officer has received certain information is material to the issue it cannot be withheld, but, if it be immaterial the courts will not compel its disclosure. See also 2 Underhill, Criminal Evidence (5th Ed.), Section 327.

The escape from the privilege has been frequently invoked where the question arises as to the existence of probable cause for an arrest or seizure without a warrant. Roviaro v. United States, supra; McCormick, op. cit., Section 148, n. 11. Of course, when a sufficient showing of probable cause is afforded by what the arresting officers saw and heard themselves, the information received from informers is of little importance and disclosure of their identity will not be required. Scher v. United States, 305 U. S. 251, 254 .

A recent case decided by the Supreme Court of California, Priestly v. Superior Court, 330 P. 2d 39 (1958), illustrates well, and applies, the principle being discussed. In that case, police officers, acting solely upon the information of two informers and without a warrant, went to the defendant’s ²⁸¹ apartment and knocked on the door. When the defendant answered, he was placed under arrest and he and his apartment were searched. Narcotics were discovered on his person and in his apartment.

On the issue of probable cause for making the arrest, the defendant objected to the officers’ testimony concerning the knowledge that they had received from the informers unless the informers’ identities were made known. This objection was overruled. The Supreme Court stated that the communications of the informers were material to the issue of reasonable cause to make the arrest and seizure, recognized that the policy conflict was between the encouragement of the free flow of information to law enforcement officers 4 and the policy to discourage lawless enforcement of the law, and then went on to adopt as its rule the observation made by the Supreme Court of the United States in Roviaro v. United States, supra, 353 U. S. 53, 61 , i.e.: “Most of the federal cases involving this limitation on the scope of the informer’s privilege have arisen where the legality of a search without a warrant is in issue and the communications of an informer are claimed to establish probable cause. In these cases the Government has been required to disclose the identity of the informant unless there was sufficient evidence apart from his confidential communication.” The California Court, in stating its reasons for the ruling, said: “If testimony of communications from a confidential informer is necessary to establish the legality of a search, the defendant must be given a fair opportunity to rebut that testimony.

He must therefore be permitted to ascertain the identity of the informer, since the legality of the officer’s action depends upon the credibility of the information, not upon facts that he directly witnessed and upon which he could be cross-examined. If an officer were allowed to establish unimpeachably the lawfulness of a search merely by testifying that he received justifying in ²⁸² formation from a reliable person whose identity cannot be revealed, he would become the sole judge of what is probable cause to make the search. Such a holding would destroy the exclusionary rule. Only by requiring disclosure and giving the defendant an opportunity to present contrary or impeaching evidence as to the truth of the officer’s testimony and the reasonableness of his reliance on the informer can the court make a fair determination of the issue.

Such a requirement does not unreasonably discourage the free flow of information to law enforcement officers or otherwise impede law enforcement. Actually its effect is to compel independent investigations to verify information given by an informer or to uncover other facts that establish reasonable cause to make an arrest or search. Such a practice would ordinarily make it unnecessary to rely on the communications from the informer to establish reasonable cause. When the prosecution relies instead on communications from an informer to show reasonable cause and has itself elicited testimony as to those communications on direct examination, it is essential to a fair trial that the defendant have the right to cross-examine as to the source of those communications.

If the prosecution refuses to disclose the identity of the informer, the court should not order disclosure, but on proper motion of the defendant should strike the testimony as to communications from the informer.” See also, Hill v. State, 118 So. 539, 540 , (Miss.); Wilson v. United States, 59 F. 2d 390, 392 , (C. A. 3rd); 13 N. Y. U. Intra. L. Rev. 141, 147-152; Mapp v. State, 114 So. 825, 826 , (Miss.); State v. Edwards, 317 S. W. 2d 441 (Mo. 1958); United States v. Keown, 19 F. Supp. 639 (D. C. Ky.), cited with approval in the Roviaro case, supra, 353 U. S. 53 ; United States v. Blich, 45 F. 2d 627 (D. C. Wyoming). It is stated in Keown, supra: “Every accused person has the right to cross-ex ²⁸³ amine on material facts every witness who testifies against him. This has been the rule ever since the law became certain and