Lawson v. State

Menchine, J., delivered the opinion of the Court. Rudolph Isaac Lawson, Sr. was convicted in a bench trial in the Circuit Court for Prince George’s County of possession of heroin in sufficient quantity to reasonably indicate an intent to distribute the same. He was sentenced to a term of 15 years imprisonment. He makes four contentions on appeal, namely: 1.

That the trial court denied appellant’s right to a pre-trial hearing of his motion to suppress evidence in violation of Rule 729. 2. That appellant was subjected to constitutionally unreasonable search. 3. That appellant was entrapped, and 4. That hearsay, inadmissible as substantive evidence, was in fact relied on by the trial court in its determination of guilt.

Alleged Denial of Pre-Trial Hearing The record does not support the contention that there was such denial. It is true that the record shows that a Motion to ⁵³⁹ Suppress Evidence was filed on December 7, 1973 and that trial occurred on May 1, 1974. Maryland Rule 729 in pertinent part reads as follows: “b. Venue. 1.

After Indictment. When an indictment has been filed in a court or after a defendant has been held for the action of the grand jury and property seized may be used as evidence at the trial, a motion for the suppression, exclusion or return of such property on the ground that it was obtained by an unlawful search or seizure, shall be filed in the court having criminal trial jurisdiction. “d. Hearing. 1. Before Trial.

When a motion is filed pursuant to subsection 1 of section b of this Rule, at least five (5) days prior to the trial date, or if a petition is transferred pursuant to subsection 3 of section b of this Rule, the trial shall not commence until the motion or petition has been determined by the court.” It is patent, accordingly, that appellant was entitled to a determination of the validity of a seizure before commencement of the trial. Taylor v. State, 19 Md. App. 386 , 311 A. 2d 468 . In Taylor , however, we also had said at 389-90 [471]: “Of course, the right to such a pre-trial determination may be waived, but we see no effective waiver on the record before us. Before trial commenced, defense counsel made abundantly clear that he desired to argue his motion.

The court categorically asserted that it would ‘get to that when the warrant is offered in evidence’, thus effectively forestalling a pre-trial determination of ⁵⁴⁰ the motion. The court also deferred ruling on the admissibility of the statement, in which defense counsel apparently acquiesced as within the discretion of the court, but this clearly was not intended by him as a waiver of a pre-trial determination of the suppression of the property seized.” In the subject case, the record clearly shows a waiver of that right to preliminary determination. There was not the slightest indication that defense counsel desired determination of the motion to suppress as a preliminary matter. To the contrary, initial reference to the pending motion to suppress by defense counsel was made in the following words, “* * * there is still pending before the Court a motion to suppress evidence, which I take mil be heard in conjunction with this trial” (Italics supplied) Thereafter, the trial judge said, “* * * we will cover that as we proceed on the trial.” The only response by trial counsel was, “Yes, Sir.” At a later point in the trial, defense counsel, objecting to a ruling by the trial court admitting the contraband into evidence, said: THE COURT: “Well, my point is that all the evidence isn’t in.

I don’t think the Court ought to rule — What other evidence do we have? MR. ROSENBERG: I haven’t examined this witness. We are joining a non-jury trial with the motion to suppress evidence, and this is how this matter is coming up procedurally.

(Emphasis added) THE COURT: All right. We will then reserve our ruling on the admissibility of State’s 1 ⁵⁴¹ (the seized evidence) until we get all of the evidence in the same posture as Exhibit 1 is in at this time, and handle the problem then. MR. ROSENBERG: Thank you.” These circumstances, shown by the record, demonstrate “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U. S. 458, 464 , 58 S. Ct. 1019, 1023 , 82 L. Ed. 1461, 1466 (1938).

The Arrest and Search On August 3, 1973, Rudolph Isaac Lawson, Sr., the appellant, was arrested by police officers in Prince George’s County without a warrant. A search of the motor vehicle in which appellant was a passenger produced a handgun, found in the glove compartment. A search of the person of the appellant at the police station revealed “a clear plastic baggie which had several tinfoil packets inside,” found within his “jockey under shorts.” The substance in the packet subsequently was identified as forty-five decks of heroin. Appellant contends that the arresting officer did not have probable cause for the arrest and that the subsequent searches were unreasonable and unlawful.

In Collins v. State, 17 Md. App. 376 , 302 A. 2d 693 , we said at 383-84 [697-98]: “ ‘A police officer may arrest a person without a warrant if he has probable cause to believe that a felony has been committed or attempted and that such person has committed or attempted to commit a felony whether or not in his presence or view.’ Code, Art. 27, § 594 B (c). It is the existence of probable cause at the time of the arrest which is the measure of the legality of the arrest. Evans v. State, 11 Md. App. 451 . Probable cause may be based on information collectively within the ⁵⁴² knowledge of the police.

Hebron v. State, 13 Md. App. 134 . So even when an officer acting on a direction to arrest was personally without sufficient probable cause to justify the arrest, it may be shown that information within the knowledge of the police team constituted probable cause. Thompson v. State, 15 Md. App. 335 . In such case, of course, the State is required to produce the evidence on which the officers initiating the arrest acted.

Id. The statute here considered is declaratory of the common law rules of arrest without a warrant, and it does not affect the established definition of probable cause, Rife v. State, 9 Md. App. 658 , which has the same meaning it had under the common law, Wescott v. State, 11 Md. App. 305 . 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. Hebron v. State, supra; Wescott v. State, supra.” We have pointed out that such knowledge may be derived from any source “perceptible to the officer’s senses, whether they be visual, auditory, or olfactory.” Johnson v. State, 8 Md. App. 187, 191 , 259 A. 2d 97, 99 . ⁵⁴³ Facts and Circumstances Within the Knowledge of the Police At the time of the arrest Robert F. Derfler, a police officer of Prince George’s County for four years, had worked in undercover narcotics and dangerous drugs investigations during the last one and one-half years of that service. At the time of the subject incident Derfler’s “investigations in Maryland had been exhausted as far as the group of people [he] was running with, [he] had reached the top.” Derfler testified that after he had been advised by one John Bryson, a known addict, that he was going “to cop drugs for himself” he had gone with him to the Loop Bar in Mt.

Pleasant, District of Columbia, hoping he “could get introduced to people that were selling the heroin then I would in turn turn it over to the Metropolitan Police Department.” While at the Loop Bar in Mt. Pleasant, one Bruce Dent, a known drug addict, asked Derfler if he was “looking,” “a term narcotics users use to mean if you’re waiting if you would like to purchase heroin.” Acknowledging that he was, Derfler, directed by Bruce Dent and accompanied by the latter’s brother Norman, also an addict, then drove to 14th Street and Florida Avenue, N.W., in Washington, D. C. When Derfler went into the District of Columbia he did not know that he would meet Dent, or that his path would cross that of Lawson. Derfler was in no position to buy drugs in the District, having only about $4.00 on his person. Derfler denied any pre-arrangement to get or try to get Lawson “to come out to Maryland,” saying, “it was just an opportunity at the time.” He said that he knew Lawson’s home had been under surveillance on suspicion that appellant dealt in narcotics, but the basis of knowledge for that suspicion was not disclosed at trial.

It was admitted that the surveillance had produced no evidence that Lawson in fact was engaged in the drug traffic. Upon arrival at 14th Street and Florida Avenue, Bruce Dent left the Derfler vehicle and approached a parked vehicle containing a female behind the wheel; a negro male in the front passenger seat; and Rudolph Isaac Lawson, Sr., ⁵⁴⁴ the appellant, in the rear seat. At that point in time, it is quite plain, nothing more than conjecture indicated that Lawson was the supply source of the addict Bruce Dent. The State contends and the appellant disputes that the subsequent events shown by the following quotations from the record, provide the probable cause essential to a lawful arrest: “Q And what happened then, after he approached Mr. Lawson?

A He was conversing with Mr. Lawson. He then came back to my vehicle and stated that — he said Rudy is only selling spoons at a hundred fifty dollars. Q What happened then? A I advised him that I had no money on me to purchase that amount, that he would have to go into Prince George’s for me to get the money.

The suspect then went back, conversed between Mr. Lawson, and he then came back to me and said, ‘How many spoons do you want?’ Q And then what happened? A I told him, ‘Three spoons.’ At this time Mr. Dent held his hand up with three fingers, indicating that, you know, that I wanted the three spoons. At this time Mr. Lawson nodded his head like yes, all right. Q Now, Detective,