Holiday News Ltd. v. State

Lowe, J., delivered the opinion of the Court. The corporate appellant here complains that its motion to dismiss a charging document as having issued without probable cause should have been granted by the Criminal Court of Baltimore. The charge of distributing obscenity originated in the District Court; however, appellant prayed a jury trial bringing the case before the Criminal Court of Baltimore. The State then notified appellant pursuant to Md. District Rule 734, that he was to be prosecuted as a subsequent offender.

Through bargaining, the case was ultimately submitted to the court on a stipulated statement of facts. Appellant reserved its motion to dismiss the charging document for lack of probable cause, but agreed that it should be considered "not prior to trial but during the course of the trial”, and then decided by the court "at the end of the production of the evidence ....” The charging document was a criminal summons issued by a District Court Commissioner charging that the appellant ".. . did knowingly distribute to Det. G. Hoover an obscene magazine, to wit, 'Super Cock, #1’ on 24 July 81.” This was a violation of Md. Ann. Code, Art. 27, § 418 which states that: "Any person who knowingly sends or causes to be sent, or brings or causes to be brought, into this ³⁴⁶ State for sale or distribution, or in this State prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor.” Appellant’s complaint is that the summons was issued upon affidavit of the officer which detailed his purchase of the magazine from appellant. The officer then took the magazine to a named District Court judge, who, according to the officer’s affidavit, "reviewed the magazine in its entirety and found the same to be obscene.” Appellant points out that the magazine was not presented to the commissioner who issued the warrant and contends that the judge’s extrajudicial opinion (to which the officer had attested in his application applying for the summons) was not sufficient to establish the probable cause necessary to warrant the issuance of a charging document.

The State does not address the quantity or the quality of the probable cause presented but contends it is of no consequence because even assuming its underlying insufficiency, dismissal of the conviction on appeal is not an appropriate sanction. "Assuming, arguendo, that the charging document in this case was issued without probable cause, and thus is illegal under the Fourth Amendment, dismissal of the charges is not the sanction applied. Even if an arrest is not based on probable cause, it does not accord Appellant any relief with respect to its request that the charges be dismissed. It is well settled in Maryland that an illegal arrest does not affect the jurisdiction of the court, is not a ground for quashing the indictment, and does not preclude trial and conviction for the offense.

Hammond and Couser v. State, 7 Md. App. 588 (1969); see also Hager v. State, 27 Md. App. 475, 477 (1975); Wescott v. State, 11 Md. App. 305, 308 (1971). Accordingly, the trial court properly denied Appellant’s motion to dismiss.” ³⁴⁷ The State’s premise is a slender reed, however, in that we have expressly avoided conclusively so holding in a recent case significantly apposite to the case before us. In Schaefer v. State, 31 Md. App. 437 (1976), we gave full deliberation to a similar probable cause question relating to criminal summonses. A reversal of a criminal conviction had been sought upon a single issue, i.e., that the trial court erred in denying a pretrial motion to dismiss the charging document (a criminal summons) on the ground that it was issued without probable cause.

Id. at 439 . We addressed the quantum issue and affirmed the conviction because there had been sufficient probable cause to issue the summons. Significantly, however, we expressly denied any intimation of the propriety of voiding a conviction upon appellate review of the pretrial motion, had probable cause not been established. Id. at 447, n. 5 .

We pointed out that: "Neither statute nor rule of this jurisdiction prohibits the trial of the defendant under an arrest warrant or summons to a defendant which is issued without probable cause.” In Schaefer , as here, there was no detention of the accused, and, absent such physical arrest, no search incident thereto. We expressly declined to decide whether proper sanctions would extend beyond evidentiary exclusions and detention prohibitions, although we did note, by a reference to Supreme Court cases, that even an illegal arrest or detention will not always void a subsequent conviction, citing Gerstein v. Pugh, 420 U.S. 103, 119 (1975); Giordenello v. United States, 357 U.S. 480, 485-487 (1958). Anxious to apprise the new formed District Court’s Commissioners that neither arrest warrants nor criminal summonses were to be issued except upon a determination of probable cause, we chose to address in Schaefer the need for some probable cause which underlay as an alternative argument the denial of the pretrial motion to dismiss. We also addressed the standard of proof of probable cause for that purpose.

The question of the appropriateness of the sanction of post trial dismissal, which we avoided to reach the more ³⁴⁸ pressing issues there, is presented here by one of the parties for our determination. We need no longer avoid addressing it since no extraneous more urgent alternative question must be answered. Although we will subsequently point out for the further enlightenment of commissioners that the unique evidence of probable cause to issue the summons in this case was adequate, the cursory assertion by the State that the conviction was not void — even assuming the absence of probable cause for the summons to have issued — would itself suffice to decide the issue raised by appellant. — the sanction of dismissal — Initially, by its very nature a summons — as well as the corporate capacity of the appellant — indicates that there was no arrest, detention, search or seizure incident thereto, involved in this case. Secondly, appellant did not press its motion pretrial, but submitted it to be decided along with the ultimate determination of guilt or innocence, after the statement of facts and all evidence had been submitted.

This signifies that appellant was not seeking relief from any pretrial oppression, but was relying rather upon prospective technical appellate argument as an ace in the hole in the event of conviction. By agreeing to have the motion decided at the end of the evidentiary trial concomitant with the ultimate determination, appellant’s pretrial rights are moot in light of the uncontroverted evidence to which appellant has stipulated. But more pointedly, we hold that even if probable cause is lacking when a summons issues, we will not subsequently void an ultimate conviction. Nowhere, to our knowledge, have sanctions for insufficient probable cause to charge or arrest extended beyond evidentiary exclusions or detention prohibitions.

The Supreme Court has even declined to retreat from the "established rule” that illegal arrest — or detention — does not void a subsequent conviction. Gerstein v. Pugh, supra. In reviewing our own mandates, the pattern is clear that the absence of probable cause to arrest only causes reversal when it affects such matters as evidence ³⁴⁹ seized incident to the arrest. Even when we do not void the conviction, we remand for retrial unless the suppression of the evidence creates an obvious insufficiency to convict upon retrial.

See Burks v. United States, 437 U.S. 1 (1978). The absurdity apparent in voiding a conviction because the Application for Statement of Charges contained technically inadequate evidence of probable cause, after sufficient evidence has been admitted within the procedural safeguards of a trial and found to constitute guilt beyond a reasonable doubt, obviously underlies the Court of Appeals’ reason for requiring mandatorily that all defects in the institution of a prosecution be moved before trial. Md. Rule 736 a 1. The post trial sanction of dismissal is inappropriate. — probable cause — The evidence that appellant had distributed obscene material in violation of Md. Ann. Code, Art. 27, § 418, varied from the affidavit of probable cause only in the sense that the magazine which had not been presented to the Commissioner — the obscenity of which even surpassed prurience — was before the court as evidence.

The attesting officer had described in his affidavit to the Commissioner the time, place, price and circumstances under which he had purchased the magazine and the person from whom it was purchased at the store owned by appellant. This clearly provided "probable cause” that the magazine was knowingly distributed. But rather than expressing his own opinion that the distributed matter was obscene, or even leaving that conclusion to the Commissioner’s personal observation, he attested that he had shown the magazine to Judge Lamdin (whom we judicially note is a District Court Judge) who, upon review, "found the same to be obscene.” This practice appears to be prevalent in Baltimore City in such cases, and appellant contends that procuring such extrajudical opinions is not sufficient to establish probable cause. While we are neither aware of a need for such extremes, nor are we assured of the propriety of a judge so ³⁵⁰ opining, 1 it is certainly "reasonably trustworthy” information that the matter distributed was obscene.

It is comparable to an attesting officer who, having purchased what he believes to be