McCarthy v. State

Anderson, J., delivered the opinion of the Court. Appellant, Alexander George McCarthy, III, was convicted by the court, sitting without a jury, in the Circuit Court for Baltimore County, under two separate indictments charging him with attempted storehouse breaking and being a rogue and vagabond and was sentenced to three years in the Maryland Penitentiary on each indictment, sentences to run concurrently. On September 15, 1966, a witness, Robert J. Shepherd, had gone to bed. At approximately 12:55 a.m., he heard something banging, and from his bedroom window observed two men standing in front of the Dulaney Apothecary.

Shepherd’s house is located across the street from the Apothecary, which was slightly illuminated on the night in question. One of the men was wearing a light trench coat, and Shepherd saw him banging on the door of the drugstore. He also observed one of the men was wearing khaki pants. After calling the police, he noted the men driving off in an automobile which had small round taillights.

Officer O’Neill of the Baltimore County Police responded to the call. Upon arrival at 12:59 a.m. on the morning in question, he observed pry marks on the doorjamb and part of the door itself. The door was on the south side of the drugstore. He also observed blue paint on the white door, apparently left by a pry bar which appeared to have been a tool about an inch in width.

A portion of a metallic coat button was found lying on the cement door step. The officer was also informed by Shepherd of his observations. Eater that morning, while on routine patrol in Timonium on York Road at Northwood Drive, he observed a late model dark colored automobile proceeding north on York Road occupied by three persons. When the officer first observed the automobile it was in front of the Dulaney Apothecary.

The time was 3 :30 a.m. arid it was the only car on the road. The officer, who was proceeding south, turned his automobile around and followed the car to a nearby intersection and stopped it about a quarter of a mile from that point. After ask ⁴⁰² ing the driver, appellant McCarthy, for identification, Officer O’Neill observed a light trench coat lying on the front seat. He further observed, by the use of his flashlight, a blue colored metal pry bar sticking out from between the rear seat cushion and the rear back rest.

He placed the occupants under arrest and took possession of the pry bar. At the Cockeysville Station, appellant McCarthy was found to be wearing a jacket missing a portion of a button. At the trial below, the pry bar and appellant’s jacket were introduced into evidence along with the two buttons taken from the jacket and the portion of the button found at the scene, showing thread from the jacket and from the button. The sole question raised on this appeal is: Was the trial court correct in allowing the State to introduce into evidence a pry bar found in appellant’s automobile as well as appellant’s coat and related evidence regarding a missing button on the grounds that the evidence was obtained through a lawful search incidental to a lawful arrest ?

The rule is well established that if a misdemeanor is being committed in the presence or view of a police officer he may forthwith arrest the offender without a warrant, and an offense is committed in his presence or view if, through his senses, he has knowledge of facts or circumstances sufficient to justify a sincere belief that the accused is committing a misdemeanor in his presence. Le Faivre v. State, 208 Md. 52, 56 , 118 A. 2d 639 ; Davids v. State, 208 Md. 377 , 118 A. 2d 636 . If the arrest was lawful the search and seizure was proper and the evidence obtained as a