King v. State

Moylan, J., delivered the opinion of the Court. Peninsulas, even as do islands, pose peculiar tactical hazards to fleeing felons. The peninsula at bar was Sparrows Point. The fleeing felons at bar were the appellants, Marvin King and Donald Eugene Mobley, who, undone by the lay of the land, were convicted by Judge John Grason Turnbull, sitting without a jury in the Circuit Court for Baltimore County, of armed robbery and sentenced each to a term of eighteen years.

Both object to the search of the getaway car, which yielded the holdup gun and its ill-gotten fruits. Both question the legal sufficiency of the damning evidence. King challenges, as well, the legality of his arrest, a contention which may be disposed of summarily. The only theory that could, in this case, legitimate the warrantless search of the automobile in which the appellants were riding is the so-called “automobile exception” and not the “search incident to arrest exception” to the warrant requirement.

The arrest not having been the source of the evidence in question, its lawfulness vel non is devoid of all significance. There is no challenge to the establishment of the corpus delicti. The scenario was routine. Akers’ High’s Store is located at 2413 Sparrows Point Hoad.

Its proprietor, Mrs. Eva May Akers, was on duty on December 20, 1971, when at some time between 6 and 6:15 p.m. two Negro males entered the store. One stood by the cash register while the other stepped past the counter and asked to be directed to the potato chips. Then, at close range, he ⁵⁴⁹ raised a gun and said, “Keep quiet, this is a holdup.” He directed Mrs. Akers to open the cash register. He removed, by her estimate, approximately $95 from the till.

Both men then fled. After screaming out the door, “They robbed me,” Mrs. Akers called the police. Officer Stephen Lucas, who received a call from his dispatcher at 6:15 p.m., arrived at the crime scene within several minutes. He broadcast an immediate alert, supplemented some minutes later by a more detailed lookout after he had talked with several neighbors and passersby.

The Sparrows Point peninsula is seagirt, except for its narrow northern neck, a railroad bridge, and three vehicular bridges to the westward — connecting it with Dundalk across Bear Creek. Whenever the alarm is raised that crime has occurred in Sparrows Point and that the criminals are in flight, the standard response for police on cruising patrol in Dundalk is to seize the advantage which topography bestows and to move into what are described as “the holdup positions,” commanding the western approaches to the three bridges across which all outbound traffic to the westward must, perforce, be funneled. Independently of each other, Officer Leonard Malinowski, of the Dundalk Police Department, and Officer Robert Hafer, of the Baltimore County Police Department on duly in Dundalk, both heard the first alert. They converged on the toll plaza at the western end of the Dundalk Avenue Bridge, the southernmost of the three crossings and the one which links Sparrows Point with the Turner’s Station section of Dundalk.

Approximately six minutes after the first broadcast, the supplemental alert furnished more descriptive detail of the two holdup men and of the fleeing vehicle. Officer Hafer pinpointed the second transmission at 6:21 p.m. Both officers had noticed the appellants’ vehicle pass through the toll plaza, westbound, between ten seconds and thirty seconds prior to the second transmission. Both gave immediate pursuit.

Officer Hafer hailed down the car within several blocks. The car contained not two but three Negro males. King ⁵⁵⁰ was in the right front seat. Mobley was on the rear seat.

The driver was a co-defendant, Lancy Raydell Cash. 1 All three suspects were frisked. The frisks produced nothing. A quick survey of the interior of the automobile revealed nothing. The three suspects were directed to reenter their automobile and to proceed, in tight convoy with one police car in front and the other behind, to the Dundalk Police Station.

The suspects were there placed in different rooms. Officer Hafer, with a detective, then executed a more thorough search of the car. The front seats of the vehicle were bucket seats, separated by what was described as a “console.” It was covered with chrome plate. The searching officers noticed that the screws or rivets along the top and rear of this console had been removed so that the chrome plate could be pulled back.

A small “well” or storage area was discovered underneath the loose plate. From that hiding place, the searching officers recovered a black pistol and approximately $115 in bills. The appellants claim this search to have been unconstitutional. The warrantless search of an automobile, under appropriate circumstances, is a long recognized exception to a fundamental proposition.

That proposition is that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U. S. 347, 357 ; Brown v. State, 15 Md.- App. 584, 586. The “automobile exception” was specifically established in 1925, Carroll ⁵⁵¹ v. United States, 267 U. S. 132 , and it has been well delineated, Chambers v. Maroney, 399 U. S. 42 ; Coolidge v. New Hampshire, 403 U. S. 443, 458-464 . The well-delineated preconditions to its reasonable invocation are 1) probable cause to believe that the vehicle contains evidence of crime and 2) exigent circumstances. PROBABLE CAUSE TO BELIEVE THAT THE AUTOMOBILE CONTAINED EVIDENCE OF CRIME A number of factors contributed to the sum total of probable cause: A. The Unities of Time and Place The appellants were stopped at a point some three to three and one-half miles by road from the crime scene.

They were stopped within a range of six to ten minutes after the crime had occurred. They were stopped proceeding away from the scene of the crime specifically and out of Sparrows Point generally. These are, to be sure, not self-sufficient factors, but they are compatible with the appellants’ guilt and add some weight to the equation when considered along with the other indications. B. Race, Sex, Age, and Neighborhood Demography The perpetrators of the crime were known to be Negroes; all three occupants of the car were Negroes.

The perpetrators of the crime were known to be males; all three occupants of the car were males. The perpetrators of the crime were described as being in their early or mid-twenties; all three occupants of the car were in their early-to-mid-twenties. They were, moreover, Negroes leaving a predominantly white neighborhood. In that demographic setting, they represent a smaller population sample, within which the other identifying factors may concur, than they would in a predominantly Negro neighborhood, where the random chance of such concurrence would have a larger field of possibilities in which to operate.

To the extent to which their presence in the neighborhood was more atypical than typical, to ⁵⁵² such an extent is the likelihood of mere coincidence diminished when all the other identifying factors do concur. C. The Description of the Clothing Probable cause need not be measured as of the moment when the officers first approached the suspect automobile. The initial stopping was an accosting, freely permitted by the laws regulating the operation of motor vehicles. Officer Lucas had put out over the airwaves the description of one of the perpetrators as wearing a green, Army fatigue jacket.

Once Officer Hafer had stopped the car and observed its occupants, he noticed that King was wearing a “green Army-type jacket” — variously described as being “fatigue type” or being “more of an overcoat.” This observation rightly entered the equation. D. The Description of the Car Officer Lucas had radioed the alert for a yellow and black Duster. The suspect vehicle was a yellow and black Dodge Coronet. The concurrence of the yellow and black color combination is of realistic significance.

The possible mistaking of one automobile make for. another makes the Duster-Coronet disparity, we think, of only slight countervailing significance. Upon our constitutionally-mandated independent review, we are persuaded that when Officer Hafer observed a yellow and black automobile proceeding out of Sparrows Point a few minutes after a robbery had been perpetrated a few miles away in Sparrows Point, which automobile was occupied by Negro males in their early-to-mid-twenties, one of whom was wearing a green Army jacket — all of which matched his radioed lookout — he had probable cause to believe that that automobile contained evidence of the robbery. The only question that gives us pause is whether the description of the getaway vehicle is a factor which may properly be considered in the probable cause equation. The problem is posed by Whiteley v. Warden of Wyoming ⁵⁵³ Penitentiary, 401 U. S. 560 , whereof we said in Peterson, Deal and Hunt v. State, 15 Md. App. 478 , at 487: “The immediate holding of Whiteley was that, just as a justification for police action is not diminished in transmission, neither is it enhanced.

If the justification is adequate at the point where the message is transmitted, it is no less so at the point where the message is received. Conversely, if the justification is inadequate at the point where the message is transmitted, that inadequacy endures and will not somehow be dissipated on the wires or on the airwaves. In transmission nothing is lost and nothing is gained.” The hurdle to be surmounted is that before Officer Hafer or Officer Malinowski might properly consider the description of the yellow and black automobile, that description must have been validly gathered by Officer Lucas back at the crime scene. Hebron v. State, 13 Md. App. 134 ; Sands v. State, 9 Md. App. 71 ; Peterson v. State, supra.

The Assistant State’s Attorney properly sought to explore and Officer Lucas properly sought to furnish the details as to how he (Lucas) came upon the information that the robbers were getting away in a yellow and black automobile. Counsel for both appellants objected and the trial court sustained the objections: “. . . Did you broadcast anything else in addition to that? A. Yes, sir.

Information was received from a subject, that did not identify himself, that the subjects were seen entering— MR. MIX: Objection. MR. HAHN: Objection.

THE COURT: Sustained. As a result of what you put over the air, officer, what happened— THE WITNESS: It was broadcast— ⁵⁵⁴ THE COURT: —that you yourself know about? THE WITNESS: —that the vehicle responsible for it was a late model— MR. MIX: Objection.

MR. HAHN: Objection. THE COURT: Sustained.” Both the hearsay information about the automobile and the circumstances under which it was furnished had a critical bearing upon the question of probable cause. The testimony pertaining thereto should not have been aborted.

The defect could have been fatal. Fortunately from the State’s point of view, this resolute witness, even in the face of repeated efforts to stay his tongue, managed to blurt out enough gratuitous information to salvage the day. Although Officer Lucas was not permitted to testify as to what he had been told by his unidentified informant, it is clear that, being the only information available to him about the car, that was what he passed on in his radio alert. From what Officer Hafer and Officer Malinowski received, we deduce what Officer Lucas transmitted; from what Officer Lucas transmitted, we deduce what Officer Lucas heard from the unidentified informant.

We think it clear, moreover, that the unidentified informant was a disinterested citizen-witness. In the scurry of activity in which, in the course of several minutes, Officer Lucas took a complaint from the robbery victim and took descriptions of