Hutchinson v. State

Menchine, J., delivered the opinion of the Court. At about 7:30 p.m. on March 3,1976, Jerome Roy Spencer was shot to death in the hallway of a Silver Spring, Maryland motel in which he had been a guest. At about 8:0b P-m- on the same date Officer Malinowski, a member of the Tactical Squad of the Montgomery County ¹⁶² Police Department, arrested Arthur Hutchinson at 3rd and D Streets, N. E. in Washington, District of Columbia, for the homicide. Hutchinson was convicted and sentenced for felony murder and use of a handgun in the commission of a felony after a bench trial in the Circuit Court for Montgomery County.

In the same trial he was acquitted for attempted robbery. In this appeal he contends, inter alia, that his confession was improperly admitted in evidence. Hutchinson testified that, while alone with a District of Columbia police officer immediately prior to the interrogation by Montgomery County police that led to the confession, the following colloquy occurred: “Q I think you were talking about this D. C. detective. What else happened, if anything?

A He got to asking me questions. I told him that I didn’t want to talk, you know. And he took, he pulled the gun down from his holster, the holster comes down, and he sat it over on the table, first. It was — there was already a gun on another table.

So he says something real smart to me. Q Can you tell the Court what you mean by that? What did he say? A I cannot actually recall what he said, but I sort of responded, because I was upset.

And he told me, don’t I know he can blow my F’ing head off and say I tried to grab his gun? And he picked the gun up and put it towards my face for a minute. And it upset me very much. So I just started to talk to him, you know.

And he told me that he could help me with the Maryland police officer.” There was no evidence offered by the State specifically to rebut the above allegations. In such circumstances the issue is controlled by Gill v. ¹⁶³ State, 265 Md. 350 , 289 A. 2d 575 (1972) and by Streams v. State, 238 Md. 278 , 208 A. 2d 614 (1965). In Gill, supra, it was said at 353-54 [577]: “... But when it is contended that someone employed coercive tactics to obtain inculpatory statements, the charge must be rebutted.

Here it is claimed the inducement occurred while Gill was alone with Hyson. Since it is uncontradicted that the suspect was in fact in the sole presence of this police interrogator, that specific person must rebut the allegations of coercion as no one else is qualified to do so.” In Streams, supra, it was said at 283 [616]: “We think the State’s failure, after Streams left the stand, to go forward with testimony which would refute his claim of promises and threats and to show the conduct of the police during the period he was in custody of the arresting officers was enough under the circumstances of this case to require a holding that the judgments appealed from must be reversed because the State did not meet its burden of establishing the voluntariness of the confessions as a prerequisite to their admission in evidence.” The proximity in time of the alleged threat and inducement to the interrogation that produced the confession was such as forbids a conclusion that their taint may have been neutralized by a repetition of Miranda warnings; by the passage of time; or by other circumstances tending to attenuate them. Compare Jenkins v. State, 25 Md. App. 551, 555 , 334 A. 2d 549, 552 (1975). In these circumstances we must reverse and remand for a new trial.

Additionally, the appellant has raised the following questions: 1. Was there probable cause for the arrest of the appellant? ¹⁶⁴ 2. Was the arrest of the appellant in the District of Columbia by a Montgomery County Police Officer lawful? 3. Was the search of the motor vehicle in which appellant was a passenger constitutionally infirm? 4.

Was the evidence legally sufficient to convict for felony murder? Because it is reasonable to believe that these other contentions will be raised at retrial, we shall answer them in this appeal. Probable Cause In Collins v. State, 17 Md. App. 376, 383 , 302 A. 2d 693, 697 (1973), we said: “It is the existence of probable cause at the time of the arrest which is the measure of the legality of the arrest.” We added at 384 [697-98]: “The rule of probable cause is a non-technical conception of a reasonable ground for belief of guilt, requiring less evidence for such belief than would justify conviction, but more evidence than that which would arouse mere suspicion. Cuffia v. State, 14 Md. App. 521 .

Probable cause exists when the facts and circumstances within the knowledge of the arresting officer or the police team, or of which they had reasonably trustworthy information, are sufficient to warrant a reasonably cautious man in believing that a crime had been committed by the person arrested. Only the probability, and not a prima facie showing of criminal activity, is the standard for probable cause.” Officer Malinowski, assigned to plainclothes duty, was using a nondescript, unmarked vehicle equipped with two ¹⁶⁵ separate radio transmitters-receivers by which he could communicate: (a) with other members of the Tactical Squad; and (b) with the Emergency Operations Center of the Montgomery County Police (EOC). His assignment required him to maintain a general surveillance of the business section of Silver Spring, Maryland, near the District of Columbia line, a “high crime area.” At about 7:35 p.m. on March 3, 1976, Malinowski parked his vehicle in an alley near the Quality Inn and turned off his lights. About one minute later he observed two men running from the motel at a fast rate of speed.

Both turned to look behind them three or four times as they ran to a parked automobile that was attended by a third man. One entered the rear seat; the other the front of the parked vehicle. The vehicle pulled away at once — before the passenger door was closed. Suspicion aroused, Malinowski followed the vehicle in Maryland for three-tenths of a mile to the District of Columbia line and continued to follow it into the District.

At the outset Malinowski had requested Corporal Isaacs of the Tactical Squad to check the motel area. Isaacs did so. At or about the same time, an employee of the motel by telephone advised EOC that an unconscious man was lying in the hallway of the motel with “blood all over.” EOC broadcast a general alert. Car 305, operated by a supervisor of Malinowski, proceeded to the motel in response to that alert.

Corporal Isaacs, having observed that a motel guest had been shot and killed, broadcast the message, “It looks like its a 0100 series.” He directed Malinowski to “stay with the vehicle.” The supervisor in Car 305, separately having confirmed the shooting death at the motel, broadcast the message, “Its a 0100 series and tell him go stop that car in the District.” This message was transmitted at 7:44 p.m. Malinowski testified that he heard both messages prior to the arrest. He explained that, “I knew there was a murder ¹⁶⁶ there.... [When] somebody says 0100 on the air, that means it is a murder.” There were, of course, many other radio communications 1 relating to the homicide, in the interval between Malinowski’s first observations at about 7:35 p.m. and the arrest at 8:03 p.m. We are persuaded, however, that further embellishment would serve merely “to gild refined gold, to paint the lily, to throw perfume on the violet, to smooth the ice, or add another hue unto the rainbow.” 2 Officer Malinowski had probable cause to believe, at the time of the arrest, that Hutchinson had committed a felony in Montgomery County, Maryland.

Legality of Arrest In Berigan v. State, 2 Md. App. 666 , 236 A. 2d 743 (1967), then Chief Judge Murphy of this Court (now Chief Judge of the Court of Appeals) said at 668 [744]: “It is, of course, clear that the legality of appellant’s arrest must be determined by applying the law of the District of Columbia, the jurisdiction in which it was made.” We shall determine the validity of the subject arrest in accordance with that command. The Facts At the time of entry into the District of Columbia, Malinowski had no intention to arrest Hutchinson or to stop the vehicle in which the latter was a passenger. He gave this explanation for his decision to arrest, “we can exclude any radio communications received by [me] in Maryland as a factor [in the arrest].... at the time [I] made the arrest [it may be] safely assume[d] that the probable cause in [my] mind was a combination of what [I] had seen in Maryland, ¹⁶⁷ and what [I] had heard on [my] radio within the District of Columbia.” We have previously shown that Officer Malinowski had probable cause to believe, at the time of Hutchinson’s arrest, that the latter had committed a felony in Montgomery County, Maryland. It is clear, however, that Malinowski did not have such probable cause at the time he entered the District of Columbia.

The Law Appellant contends that because Malinowski did not have probable cause to arrest Hutchinson at the time of entry into the District of Columbia, the information thereafter acquired within the District of Columbia cannot be considered in determining whether probable cause for the arrest existed. We reject the contention. Both the District of Columbia and the State of Maryland have adopted the Uniform Act on Fresh Pursuit. The District Act, as codified in the District of Columbia Code (1973) reads in pertinent part as follows: Ҥ 23-901.

Arrests in the District of Columbia by officers of other States Any member of a duly organized peace unit of any State (or county or municipality thereof) of the United States who enters the District of Columbia in fresh pursuit and continues within the District of Columbia in fresh pursuit of a person in order to arrest him on the ground that he is believed to have committed a felony in such State shall have the same authority to arrest and hold that person in custody as has any member of any duly organized peace unit of the District of Columbia to arrest and hold in custody a person on the ground that he is believed to have committed a felony in the District of Columbia. This section shall not be construed so as to make unlawful any arrest in the District of Columbia which would otherwise be lawful.” ¹⁶⁸ No doubt surrounds the intended legislative purpose. In The Council of State Governments, The Handbook on Interstate Crime Control (Rev. ed. 1966) at 119, it is said: “The purpose of the Uniform Act on Interstate Fresh Pursuit is to prevent criminals from utilizing state lines to handicap our police in their apprehension. At the present time our most desperate criminals head straight across state lines after the commission of a crime, knowing that there is comparative safety beyond the border.

For in the foreign state the pursuing officer from the state wherein the crime was committed is, in general, no longer an officer. This abnormality, so contrary to all justice and reason, is remedied in a simple manner by the Fresh Pursuit Act. Thereunder, the moment an officer in fresh pursuit of a criminal crosses a state line, the state he enters will authorize him to catch and arrest such criminal within its bounds. The statute grants this right only when the officer is in fresh pursuit of a criminal, that is, pursuit without unreasonable delay, by a member of a duly organized peace unit, and only in cases of felonies or supposed felonies occurring outside the boundaries of the state adopting the act.

It is thus based upon the little-known common-law doctrine of fresh pursuit, from which the statute has derived its name.” Was this statute intended to make the knowledge possessed by the officer upon entry into the District a