Kelly v. State

Orth, C. J., delivered the opinion of the Court. Everyone agreed that MICHAEL JOSEPH KELLY, JR. was simply unlucky. One of the arresting officers said so in ¹⁴⁶ barracks room language. His defense counsel made the point in arguing that he be acquitted.

The trial judge so stated in convicting him. There was no element of luck, however, in the unlawful possession by Kelly of some 43 pounds of marihuana, and smaller quantities of the controlled dangerous substances amphetamine and pentobarbital, a barbituric acid. The corpus delicti of the crime of possessing this contraband and Kelly’s criminal agency were established far beyond a reasonable doubt; in fact, the proof was to an absolute certainty with not even an attempt on his part to deny the possession. The trouble is the convictions were improperly attained.

The contraband was unconstitutionally seized from Kelly by the authorities and should have been excluded from evidence. With its exclusion, the State has no case. In the ultimate, therefore, if Kelly’s fate is to be evaluated in terms of luck, he is lucky, saved from punishment for breach of the law because of the exclusionary rule invoked by the Supreme Court for violation of the fourth amendment guarantee against an unreasonable search and seizure. Mapp v. Ohio, 367 U. S. 643 . 1 Why everyone felt that Kelly was unlucky was because he took United Airlines Flight 346 from Chicago to Friendship Airport on 25 July 1971.

Agents of the Federal Bureau of Narcotics and Dangerous Drugs had set up a surveillance at Friendship to arrest one Frederick Crapper. Special Agent Jerry I. Rinehart had received information that morning from an Agent Jacobs, who had received it from other agents in Arizona, who had received it from the United States Customs Office there. Jacobs told Rinehart that “we had a white male individual coming into Friendship Airport with long brown hair, a college-type student, who was coming into Friendship from Chicago on Flight . . . 346 that morning.” This individual was about 23 years of age and ¹⁴⁷ carrying two pieces of luggage, one green and one brown. The baggage ticket numbers were given.

This information came from “a cooperating individual with the U. S. Customs”, who had supplied information before leading to “I think five, six, seven times of prior convictions ... all supposed to be good information.” The surveillance was set up at 8:45 a.m., about an hour before Flight 346 was due. “We had a number of agents on the upper deck where the flight was coming in and then we had agents where I was stationed in the lower level where the baggage claim department was. The agents above were supposed to try to identify any male individual getting off of the airplane at that time. At this time they — when they got down to the lower level they identified two white male individuals that had fitted the description.” 2 One of them was Kelly. The other turned out to be the man the agents were looking for, Frederick Crapper.

Those two were the only ones on the plane generally fitting the description. Several of the agents followed Kelly. He took his baggage off the claim rack. Both bags were green.

Crapper went upstairs. 3 Kelly, carrying his bags, went toward the exit. The agents arrested him and searched his luggage. The contraband was found in one of the bags and seized. Kelly was indicted and tried at a court trial in the Circuit Court for Anne Arundel County.

He was convicted of possessing marihuana “in sufficient quantity to reasonably indicate under all circumstances an intent to unlawfully distribute” (1st count), possessing amphetamine (3rd count), and possessing barbituric acid, to wit, Pentobarbital (4th count). He was sentenced generally to a term of 2 years, the sentence was suspended and he was placed on probation upon conditions designated and payment of costs. The circumstances leading to the seizure of the ¹⁴⁸ contraband as above set out were as recounted by Rinehart at a pretrial hearing on a motion to suppress the evidence on the ground of illegal search and seizure. Maryland Rule 729.

The court below ruled that the warrantless arrest was legal as based on