Edwardsen v. State

Prescott, J., delivered the opinion of the Court. Edward R. Edwardsen, who is no stranger to this Court (see Edwardsen v. State, 220 Md. 82 , 151 A. 2d 132 ) and the trial courts of this State according to his statement of his record, was found guilty of statutory burglary in the Criminal Court of Baltimore by a judge, sitting without a jury. After sentence, he noted his appeal. He poses four questions in his brief, but in the view we take •of the case, it will be necessary to answer but one: Did the trial court err in admitting certain evidence obtained as the result of an illegal search and seizure?

On the morning of February 14, 1962, the operator of the Ernst Furniture Company discovered that his store had been burglarized, and twelve to fifteen small transistor radios, valued •at over $100, and about $20' in cash, were missing. Entrance to ³³⁴ the store had been gained through a trap door on the roof. The appellant lived adjacent to the burglarized premises in an apartment house with one Mary Hiltz, to whom he was not married. The second floor of the apartment house leads to a landing on a fire escape, and from that landing, it is possible to step on the roof of the furniture store.

The record discloses that the evidence down to this point was received in the usual and customary manner, but, from this point on, the record is very unsatisfactory in that it fails to relate sufficient details so that we can determine what really transpired at the trial. After receiving notification that the burglary and larceny had occurred, two investigating officers of the Police Department went to the furniture store and examined the premises. They then “received certain information which took [them] to a certain area [where appellant worked, some ten to fifteen blocks from where he lived] where [they] were looking for a certain automobile, the information of which we had received.” They “spotted” an automobile with no tags on it parked on a lot, and from there they went to appellant’s employer and talked with him. The attorney for the State admonished the officer not to say what the employer told him, but asked the officer: “Then acting upon that information which you received [from the employer], you did something, did you ?” The officer replied by stating that “acting upon the information” he asked the employer had he seen the appellant there, and the employer said that he had.

The officers left the employer and a few minutes thereafter, while walking along the street, they “spotted” appellant walking down the far side thereof. They “called to him to stop,” and one “stepped out and told him that he was under arrest.” They then searched him and found a set of keys in his pocket. Defense counsel objected to the officer’s testimony relative to the finding of the keys, but his objection was overruled. At this point, we leave, temporarily, the chronological order of the taking of the testimony.

During the course of the second officer’s testimony, after the owner of the store and one officer had testified and after the objection to the admissibility of the keys, a “paper” was handed to the judge and he was requested to read it. The record states the “paper was then ³³⁵ handed to and perused by the court.” A conference was then had at the bench between the court and counsel; the details of which are not related. Whereupon the court said, “I will have the clerk check on that [apparently some statement made by the appellant] during recess,” which was then taken. After recess, the judge announced, “I find from a file handed me by the clerk that [appellant] did file a paper in connection with another matter.” There then followed another conference at the bench; after which the court said, “I find there was probable cause to place the defendant under arrest and therefore I will deny the motion [made by the appellant] just prior to recess.” The contents of the motion is not in the record, but the above statement of the judge impels an inference that the motion was in the nature of one to suppress certain evidence (the set of keys and several radios and a jacket found in the automobile as we shall soon see), on the ground