Martin v. State

Moylan, J., delivered the opinion of the Court. The appellant, Jerome Martin, was convicted in the Circuit Court for Charles County by Judge James C. Mitchell, sitting without a jury, of armed robbery. His contentions on appeal reduce themselves essentially to three: (1) That evidence of a stolen revolver, found in his control, was unconstitutionally obtained; (2) That an in-court identification of him by the robbery victim was unconstitutionally tainted; and (3) That the evidence was legally insufficient to sustain the conviction. Because of our feeling that the appellant must prevail on the search and seizure question, it is unnecessary to reach his other two contentions.

The armed robbery in question occurred on March 3, 1971, in Charles County. Among the items stolen was a .38 caliber Smith and Wesson revolver, bearing the serial number R29660. Five and one-half months after the Charles County robbery, the appellant was stopped in the District of Columbia by Metropolitan Police. They searched the car that he was driving and recovered the Smith and Wesson revolver, which a records check showed had been stolen in Charles County.

A pretrial hearing was held on the appellant’s motion to suppress evidence of the revolver as having been unconstitutionally come upon. It is from the denial of that motion that the appellant now appeals. ¹¹⁴ The State advances a broad phalanx of constitutional theories to justify the ultimate seizure of the revolver from the automobile, in the apparent hope that one, at least, of them will penetrate the redoubt. None of them does. At approximately 11 p.m. on August 19, 1971, Officer James Davis and Officer Kenneth Allen were on routine patrol in Washington, D.C. As they passed the Capitol Cadillac storage lot, a fenced-in area with a chain across the entrance, they observed two individuals, one of whom turned out to be the appellant, duck down behind a vehicle stored on the lot.

The officers proceeded onward until they were out of view of the parking lot. They then reversed their direction and returned to the lot. The two men previously seen on the lot were now leaving it. They were stopped.

They explained to the officers that they were looking at cars on the lot but acknowledged that they did not have permission to be there. The officers frisked the pair, recovering no weapons. The State advances the theory that the “stop” and the “frisk” were reasonable under Terry v. Ohio, 392 U. S. 1 , 88 S. Ct. 1868 , 20 L.Ed.2d 889 (1968), and Sibron v. New York, 392 U. S. 40 , 88 S. Ct. 1889 , 20 L.Ed.2d 917 (1968). The State is correct that the circumstances were such as to represent a classical justification for a reasonable “stop.” In a commercial neighborhood late at night, the subsequent “frisk” for weapons carried out by the police officers in the interest of self-protection was also reasonable.

The difficulty with the State’s “stop and frisk” theory is that it “dead ends” and does not carry them the next necessary step. The search of the appellant’s nearby automobile cannot be justified as part of the “stop and frisk.” The State next advances the theory of “search incidental to a lawful arrest” under Chimel v. California, 395 U. S. 752 , 89 S. Ct. 2034 , 23 L.Ed.2d 685 (1969). It advances this theory in two variant forms. The “frisk” of the appellant’s companion produced a marihuana cigarette.

Officer Allen testified that he arrested the appellant “for being with somebody that had contraband” on him. It is unnecessary to deal with the dubiety of the seizure of the suspected marihuana cigarette in the course of a “frisk” limited in ¹¹⁵ scope to a “pat down” for weapons, since a single marihuana cigarette in the pocket of a companion was palpably insufficient to justify the arrest of the appellant. The officer stated, as well however, that he arrested the appellant for tampering with an automobile. Since Officer Davis knew that the appellant had been arrested in that same precinct two months earlier on the charge