Gray v. State

Wilner, J., delivered the opinion of the Court. As a result of having “shoplifted” a set of glass tumblers worth $1.88, Bruce Gray was sentenced to eight years imprisonment. Lest one think this sentence somewhat harsh ^and disproportionate, we hasten to add that, at the time of his arrest, Mr. Gray had in his possession 70 bags of heroin; and it was for the possession of that amount of that substance that he was convicted and sentenced. He complains in this appeal that (1) the trial court should have suppressed the heroin as evidence, (2) the court erred in requiring him to admit guilt of an unrelated crime, and (3) the evidence was insufficient to support his conviction.

The first and third of these charges have no merit; the second is justified. • I. SUPPRESSION OF THE HERION Prior to the commencement of trial, appellant moved to suppress evidence, to wit, the heroin, on the ground that it was obtained by the State by virtue of an unreasonable search and seizure. What happened, based on the evidence produced at a pretrial suppression hearing, was this. Glen Brooks was a commissioned special police officer ' employed by Reads Drug Stores. On the evening of October 1, 1976, he observed appellant enter the Reads store at the Mondawmin Shopping Center in Baltimore City, carrying two large and unmarked shopping bags.

Noting that “we normally are skeptical of large bags coming into the store,” Officer Brooks kept his eye on appellant while he was in the store. According to Brooks, appellant just browsed around for a while, but, at one point, stooped down and put a set of glasses into one of the shopping bags. Brooks said that he had an unobstructed view of this event. Appellant then hurriedly ³⁴⁵ left the store, with the glasses in his bag, walking past the cash registers without paying for the merchandise.

Brooks followed appellant out of the store and stopped him about ten feet from the store. Appellant first denied having taken any glasses, and, when Brooks confronted him with the glasses in his bag and offered him the opportunity to pay for them, appellant claimed he had no money. At that point, appellant was placed under arrest for shoplifting and was promptly taken by Brooks to a storage room that was used also for detention. In the “detention” room, Brooks conducted a “pat down,” of appellant during the course of which he felt a “bulge” in appellant’s right front pocket.

He stated that although it “didn’t appear to be a weapon-type bulge,” he was not satisfied that appellant was unarmed until appellant had emptied his pockets. Specifically, he noted that merely because the “bulge” in appellant’s pocket didn’t feel like a weapon, “that didn’t mean it wasn’t a weapon.” What it turned out to be was 70 individually wrapped bags of heroin. Appellant’s suppression argument rests on two bases. First, he claims that Officer Brooks had no probable cause to make the initial arrest.

This, we find to be utterly frivolous in light of Brooks’ testimony. Second, he contends that assuming, arguendo, the validity of the arrest, Brooks had no authority to conduct the type of search that produced the heroin. His argument here is that (i) the authority of a special policeman is derived from Md. Ann. Code art. 41, § 64; (ii) that statute permits a special policeman to exercise police power only in connection with the care, custody, and protection of his employer’s property; (iii) this means that the authority of a special policeman to conduct a search incident to an arrest is limited to a search for property belonging to his employer or (for his own protection) for weapons; (iv) he therefore has no authority to conduct a “general exploratory search” once he is satisfied that the accused is unarmed and any suspected stolen goods have been recovered; (v) any stolen goods had been recovered and Brooks had satisfied himself that appellant was unarmed before he discovered the heroin; ergo ³⁴⁶ (vi) the “extended” search producing the heroin was unauthorized and therefore unlawful. The simplest answer to this sophistic argument is that, according to his testimony at the suppression hearing, notwithstanding that the “bulge” was soft and didn’t appear to be a “weapon-type bulge,” Brooks was not satisfied that appellant was unarmed until after he had emptied his pockets and the nature of the bulge was determined.

Thus, even if Brooks’ power to search was as limited as appellant urges, he still would have been authorized to conduct the search he did. A more basic flaw in the argument is that it rests upon an entirely erroneous reading of the statute. Section 64 provides, in relevent part: “Each person appointed under this subtitle as a special policeman is charged with the protection and preservation of peace and good order on the property described in the application for the commission. He has the power to arrest persons who trespass or commit offenses thereon.

He has, and may exercise, the powers of a police officer upon the property described in the application for the commission and may exercise these powers in any county or city of the State in connection with the care, custody, and protection of other property of the requesting authority or other property, real or personal, for which it has assumed an obligation to maintain or protect.” (Emphasis supplied.) 1 Appellant somehow reads the italicized part of the statute as supporting his claim that a special policeman’s authority to conduct a search incident to a valid arrest is limited to the recovery of his employer’s property. This is an unjustifiably ³⁴⁷ strained interpretation, which is supported neither by logic nor legislative intent. The italicized language is part of a sentence, and one must read the entire sentence to ascertain its meaning. The sentence gives a special policeman the powers of a police officer, and then describes where he may exercise those powers.

First, he may exercise them on the property described in the application for his commission. 2 Second, he may exercise them any place in the State (i.e., away from particular property described in the application) but only “in connection with the care, custody, and protection of other property ... for which [the employer] has assumed an obligation to maintain or protect.” It is not the police power itself that is limited, but only the circumstances under which it may be exercised off the particular property described in the application for the commission. So long as the special policeman is acting in connection with the care, custody, or protection of his employer’s other property, he may exercise to the full the powers of a police officer; and that includes the same power to search incident to a valid arrest as is possessed by a regular police officer. This is abundantly clear from the legislative history of the statute, which is quite extensive. Special policemen were first authorized in 1880, when the General Assembly authorized the Governor, upon application by a>corporation owning or using a railroad, steamboat, canal, furnace, colliery, or rolling mill, to appoint persons “to act as policemen for the protection of the property of said corporation ... and for the preservation of peace and good order on their respective premises, railroad trains or steamboats.” 3 The Act provided that these special policemen, “shall possess and exercise, in the counties and cities in which the railroads, canals, colleries, furnaces, rolling mills and premises of the corporation for which he may have been appointed are respectively situated, all the authority and powers held and ³⁴⁸ exercised by constables at common law and under the statutes of this State, and also all the authority and powers conferred by law on policemen in the City of Baltimore.” The Court of Appeals had a number of occasions to construe this statute, primarily in the context of the extent to which the sponsor/employer was civilly liable to third parties for the acts of the special policemen employed by them. 4 What emerged from these cases was that special policemen had a dual identity, being primarily State officers but also agents of their sponsor/employer.

When engaged in enforcing the criminal law, as distinct from the rules, regulations, or procedures of the “employer,” their duty was held to be “the same as any other policeman or constable” and was exercisable in the counties in which the “employer’s” premises were located. 5 From these cases, the Attorney General later concluded that “the power which a special officer exercises under authority of the subtitle is a power of government, not his employer. 6 Over the years, the General Assembly extended the provisions of the 1880 Act to the point that nearly any business establishment was able, by action of either the Governor or the Police Commissioner of Baltimore City, to employ special policemen. 7 ³⁴⁹ Throughout the years these provisions were in effect, they were the subject of numerous opinions of the Attorney General. In fact, it was these opinions that, in a practical sense, determined the nature and scope of the special policeman’s authority. 8 They addressed two principal questions: (1) what was the special policeman’s authority while on his employer’s property, and (2) what was his authority when off the employer’s property? With respect to the first question, Attorney General Finan concluded, in 1964: “On the enumerated premises the authority to act as a police officer of the State is completely concurrent with that of regular officers. Even if a crime so pure as to bear no relationship to the interest of the employing business could be distilled, as a crime it would, historically and constitutionally, be ‘against the peace, government and dignity of the State.’ Constitution, Article IV, Section 13.

By definition, therefore, it would fall within that portion of Section 342 of the subtitle which authorizes special police to act for the preservation of ‘peace and good order’ on the enumerated premises.” 9 Thus, the words “peace and good order” sufficed to permit a special policeman, when on his employer’s property, to enforce the criminal law generally. By virtue of that phrase, his jurisdiction there was quite broad, and was not limited only to those offenses of some particular interest to his employer. The second question — the scope of authority off the employer’s property — arose in a number of different contexts; and, over the years, it was held that: (1) a special policeman could, under the doctrine of fresh ³⁵⁰ pursuit, make an arrest off his employer’s property for an offense committed on the employer’s property and in his presence; 10 (2) he was authorized to direct traffic on public streets and highways adjacent to the employer’s property, and to enforce the traffic laws while engaged in that activity, including the making of arrests for traffic violations; * 11 (3) he was authorized to maintain order in a picket line on an adjacent public street; 12 (4) at least within the same county as his employer’s “plant,” he could exercise jurisdiction away from the plant — i.e., off the employer’s real property — in order to protect some piece of movable or personal property of the employer; 13 (5) his exercise of “extra-territorial” jurisdiction was, in any case, limited to the confines of a county (or city) in which hi& employer had one of the types of property mentioned in the statute (railroad, canal, plant, etc.). 14 It was with this interpretative background that House Bill 299 was introduced into the 1968 session of the General Assembly. It sought to repeal the public general laws relating to special policemen, then codified in Article 23, as well as some peculiar provisions in Article 41 authorizing the appointment of special policemen upon application of the Governor of another State that owned property in Maryland, 15 and to create in Article 41 an entirely new subtitle concerning special policemen.

What would have been new § 64 of Article 41 stated, in relevant part: “Each person appointed under this subtitle as a special policeman shall be charged with the ³⁵¹ protection and preservation of the property-described in the application for the commission. He shall have the power to arrest persons who trespass or commit offenses thereon. He shall have, and may exercise, the powers of a police officer, but only upon the property described in the application for the commission.” (Emphasis supplied.) As so worded, this provision would have repealed virtually all of the “extra-territorial” authority of special policemen that had previously been supplied by the Court of Appeals in the early cases under the 1880 Act and later by the Attorney General. There would have been no power to make an arrest or to exercise any police jurisdiction other than on the particular property of the employer described in the application; and, by not including the words “peace and good order,” that were contained in the existing law, the basis for the special policeman’s general criminal jurisdiction exercisable on the employer’s property may also have been considerably restricted.

The basic thrust of House Bill 299 was to develop some quality standards in the issuance of special police commissions. Instead of applications being submitted directly to the Governor, as under the then-current law, they would go to the State Police, who would investigate the character, reputation, and qualifications of the prospective special policeman before making a recommendation to the Governor. The Superintendent of the State Police would also have been authorized to promulgate rules and regulations as to the conduct of these special policemen. House Bill 299 was not passed, but was instead referred to the Legislative Council.

During the interim before the 1969 session, the Judiciary Committee of the Council considered the bill, made some changes in it, and recommended an amended version to the Council. That amended version, which, overall, the Council stated was “similar to House Bill 299”, was introducted as Senate Bill 40 in the 1969 session and was enacted. 16 The principal differences between the two ³⁵² bills were in section 64, which was changed by the Senate Bill in three respects, as follows: 17 “Each person appointed under this subtitle as a special policeman shall be charged with the protection and preservation of peace and good order on the property described in the application for the commission. He shall have the power to arrest persons who trespass or commit offenses thereon. He shall have, and may exercise, the powers of a police officer [but only] upon the property described in the application for the commission and may exercise these powers in any county or city of the State of Maryland, in connection with the care, custody, and protection of other property of the requesting authority or other property, real or personal, for which it has assumed an obligation to maintain or protect.

In order to facilitate the orderly ingress and egress of traffic to and from the property described in the application, he shall have authority to direct and control traffic on public highways and roads adjacent to and in the immediate vicinity of the property described in the application when this activity is approved in advance by the Superintendent of the Maryland State Police....” Each one of these changes is traceable to some area of extended jurisdiction supplied by the Court of Appeals or the Attorney General in connection with the pre-existing law that had been omitted in House Bill 299. In particular, the language in question here has a direct and unmistakable reference to the “extra-territorial” powers discussed in the various opinions of the Attorney General. 18 With this background, it is clear that, rather than expressing a limitation on the authority of a special policeman, as alleged by appellant, this language was intended to ratify, and in fact broaden, the extended authority ³⁵³ engrafted into the then-current law, primarily by the Attorney General. By these words, the General Assembly authorized special policeman to exercise jurisdiction away from the particular property described in the application for their commission, and in any county — not just those in which the employer had property described in the application — if the exercise of such jurisdiction was in connection with the care, custody, or protection of other property oí the employer. By “other property” was obviously meant property other than that described in the application.

Thus, reading the various parts of the section in harmony with each other, and in the light of the authority actually exercised by special policemen under the then-current law, we find that the language in question was intended, and, in its natural meaning has the effect, of vesting special policemen with the same general police power off the employer’s premises described in the application for their