Goad v. State

Prescott, C. J., delivered the opinion of the Court. This case again points out the handicaps under which peace officers in Maryland frequently find themselves due to the unusual distinctions between felonies and misdemeanors in this State. David Kauffman, in an able and widely-read article, pointed out some of the problems arising therefrom as early as 1941. See 5 Md. R. Rev. 125.

Five years ago, this Court called attention to the fact that these problems still persisted then, and they could be dealt with by legislative, but not judicial, action. ³⁴⁷ Oden v. State, 222 Md. 325. The problems, for the main part, are still existent. Appellant was convicted of unlawfully breaking into a warehouse in Baltimore City and stealing therefrom goods and chattels of the value of $15.25. Code (1957), Article 27, § 33.

The only question for our determination is whether or not the defendant’s arrest was illegal, for the State, quite properly, concedes that if his arrest were illegal, the search of his person immediately thereafter was unreasonable and the personal property seized as a result of the search should not have been received into evidence. At about 12:15 a.m. on February 5, 1964, the burglar alarm of the warehouse involved went off. Within minutes, a representative of the National Detective Corporation, a Mr. Gattgh, was on the scene. He discovered two men there: one was coming out of a window of the warehouse; the other was outside, coming over a hill at the rear of the building.

Gaugh radioed his office to inform the police. Unfortunately, he was unable to get a good view of either of the men and therefore was not able to give the police, when they arrived, a detailed description of them. The only description he gave to the police was that one of the men was wearing a “black three-quarter length coat.” (It would be interesting to know how many men in Baltimore were wearing this type of coat in February, 1964.) This was the description of the suspect that was broadcast by the police. The man wearing the above mentioned coat ran across a road, and just beyond the road was a stream.

Gaugh’s testimony seems to indicate that the man wearing the overcoat was the one he saw coming out of the window, but he does not say so with certainty; nor did he make it clear that the two were acting in concert. He did not at anytime, including the time of trial, identify the appellant, and frankly admitted that he could not. Officer Marslett, together with Officer Wheatley, was parked in a cruising police car nearby. After hearing by broadcast of the entry, they went to the scene.

They learned that the two men had fled, and that the one wearing the black coat had run in the direction of the stream. They began cruising the area. At about 12:45 a.m., they observed the appellant walking on a ³⁴⁸ grass plot close to Jones Falls Expressway at North Avenue. This was, perhaps, a half-mile from the warehouse.

They hailed the appellant, and, after observing he was wet from the waist down, immediately arrested and searched him. The search produced a flashlight, a transistor radio, and a screwdriver which were admitted in evidence over objection. (The flashlight and radio were later identified by employees at the warehouse as having been rifled from their desk drawers.) The officer testified that appellant was arrested because “there was a felony committed in the area.” When asked, “What felony?”, he replied, “Breaking and Entering.” (Breaking and entering a warehouse, as distinguished from breaking and entering a dwelling in the nighttime, is still a misdemeanor in Maryland) There were, of course, additional facts, but the above are all that are pertinent to the question we must answer. Appellant argues that his arrest, without a warrant, was made not for a misdemeanor committed in the presence, or the view, of the arresting officers, and at a time when the police did not have probable cause to believe that a felony had been committed, and he had committed it; hence his arrest was illegal.

The State concedes that the arrest was not made for a misdemeanor committed in the presence, or view, of the officers, but earnestly contends that the officers had probable cause to believe that a felony had been committed, and that appellant had committed it; consequently, the arrest was legal. Our answer to these contentions will, unquestionably, be discouraging to an obviously good piece of police work, but it is dictated by authority beyond our control. Before the decision of the Supreme Court in Mapp v. Ohio, 367 U. S. 643 (1961) which flatly reversed its previous decision in Wolf v. Colorado, 338 U. S. 25 , and held that in a State criminal