Hayward v. State

⁶⁵⁵ Levine, J., delivered the opinion of the Court. We granted certiorari in this case to consider the question expressly left open in Lohss and Sprenkle v. State, 272 Md. 113 , 321 A. 2d 534 (1974), whether the State may appeal from the dismissal of an indictment entered without its consent where the sole basis for dismissal was the suppression of certain evidence seized by the State. In State v. Hayward, 30 Md. App. 194, 200 , 350 A. 2d 702 (1976), the Court of Special Appeals held that under the facts of this case, the State could appeal. For reasons that follow, we now conclude that the question cannot be reached here.

The relevant facts are both simple and undisputed. Appellants were charged in the Circuit Court for Baltimore County with violating the controlled dangerous substances laws of this state and elected to be tried by the court. At the outset of their trial, the court (Proctor, J.), on finding that a search warrant had resulted in the seizure of evidence from appellants and in their arrest, requested production of the warrant application. 1 After examining those papers, the court expressed considerable doubt that the “reliability” of the informant mentioned in the application had been established in accordance with applicable constitutional standards. An extensive colloquy ensued in which the prosecuting attorney and defense counsel addressed themselves to the issue raised by the court.

The court was apparently of a mind to hold the search warrant invalid, but was troubled by the prospect that such a ruling might not be subject to appeal by the State. After a brief exchange on the issue of appealability, the following occurred: “THE COURT: Well, your motion is what, to quash the indictment? ⁶⁵⁶ “MR. CARDIN [defense counsel]: May we approach the bench? “THE COURT: Yes, come on up. “(an off-the-record discussion was had by court and counsel.) “MR. CARDIN: If Your Honor please, the motion will be a motion to quash the indictment. “THE COURT: And that is based upon the contention that the indictment is based upon the search which was made as a result of the warrant and your contention is that the warrant is — that the application is wholly inadequate? “MR.

CARDIN: That is correct, Your Honor. “MR. WILSON [State’s Attorney]: For the record the State will enter an objection based on reasons already stated. “THE COURT: All right. And I am going to grant the motion to quash the indictment....” 2 An appeal to the Court of Special Appeals in behalf of the State followed. There, the State contended that since the search warrant was valid, the trial judge had erred in dismissing the indictment.

The Haywards responded with a motion to dismiss the appeal bottomed on Lohss and Sprenkle . They argued that the appeal was “merely a gambit for circumventing the denial of the State’s right to appeal from the granting of a motion to suppress.” Lohss and Sprenkle v. State, supra, 272 Md. at 120 . The Court of Special Appeals denied the motion to dismiss the appeal and proceeded to reverse the dismissal of the indictment on the ground that “the facts stated in [the application for the search warrant], though arguably thin, were sufficient to show probable cause for the issuance of the warrant.” State v. Hayward, supra, 30 Md. App. at 201 . We are concerned here only with the first action taken.

In Lohss and Sprenkle , the trial court granted pretrial ⁶⁵⁷ motions to suppress illegally seized evidence filed by the two defendants. Thereafter, the court dismissed both indictments, the first in consequence of a motion which was made by one of the defendants and in which the prosecution had acquiesced, and the other as a result of the State’s own motion. On appeal, the Court of Special Appeals held in State v. Lohss and Sprenkle, 19 Md. App. 489 , 313 A. 2d 87 (1973), that the State could appeal from the dismissals under then Maryland Code (1957, 1968 Repl. Vol.) Art. 5, § 14, which permitted the State to appeal from a final order “granting a motion to dismiss, or quashing or dismissing any indictment.” 3 We reversed in Lohss and Sprenkle v. State, supra, on the ground that the State was foreclosed from appealing in light of its consent to the dismissals.

We thus found it unnecessary to decide whether the