Fidazzo v. State

⁵⁹¹ Moylan, J„, delivered th® opinion of the Court. The appellant, Alfred Fidazzo, was convicted in the Circuit Court for Wicomico County by Judge Richard M. Pollitt, sitting without a jury, of both breaking and entering and grand larceny. Neither the corpus delicti of the crime nor the criminal agency of the appellant are in factual dispute. A bag being carried by the appellant at approximately 6:45 a.m. on June 8, 1975, in Ocean City was full of cash and identifying envelopes taken from Lawrence’s Car Wash in Salisbury the evening before.

At issue is the constitutional propriety of the investigative look into that bag. Two officers gave their versions of the accosting of the appellant upon the Boardwalk, of his voluntary accompanying of them to the police station and of his consenting to their looking into the bag in question. The appellant gave a different version. In a very careful and precise finding of facts, Judge Pollitt found the testimony of the policemen to be credible and the testimony of the appellant to be not credible.

In making our own independent constitutional judgment as to whether the consent to the search of the bag was voluntary, we give great weight to the findings by the hearing judge, with his superior opportunity to observe the demeanor of the witnesses, when it comes to the resolution of disputed first-level facts. Walker v. State, 12 Md. App. 684, 694-695 . As we said in Walker , at 695: “What we mean, therefore, when we say that we have the obligation to make an independent, reflective constitutional judgment on the facts whenever a claim of a constitutionally-protected right is involved is that, although we give great weight to the findings of the hearing judge as to specific, first-level facts (such as the time that an interrogation began, whether a meal was or was not served, whether a telephone call was requested, etc.) we must make our own independent judgment as to what to make of those facts; we must, in ⁵⁹² making that independent judgment, resolve for ourselves the ultimate, second-level fact —