McChan v. State

Hornby, J., delivered the opinion of the Court. These prosecutions for armed robbery and other offenses incident thereto arose out of a series of five holdups of liquor dispensing establishments in Baltimore City committed within less ¹⁵² than a fortnight at the end of 1963 and the beginning of 1964. All five of the appellants—George M. McChan, Major K. Jones, Robert P. Griffin, Willie F. Bethea and Charles D. Shelly— were convicted of one or more of the crimes charged in eleven indictments, and all have appealed. All of the holdups followed a pattern in that the participants were colored men wearing black scarves as a mask with one of them (though not always the same one) carrying a single-barrelled shotgun.

On December 27, 1963, Howard’s Liquor Store was robbed by two men. On January 1, 1964, Eddie’s Cafe was robbed by three men. On January 2, Lou’s Liquor Store was robbed by three men. Later that same night the Ensor Lounge was robbed by three men.

And on January 9 an attempt was made by two men to rob Howard’s Liquor Store again. On this occasion, an employee of the store shot one of the robbers and the robber with the shotgun fired in the direction of one of the employees. Although the wounded man escaped, he was apprehended a short distance from the scene of the attempted robbery. As a result of the first holdup of Howard’s Liquor Store, McChan, Jones and Griffin were charged (under indictment numbered 234) with armed robbery.

Jones was found guilty. McChan and Griffin were found not guilty. McChan was also charged (under indictment numbered 236) with carrying a deadly weapon, but was found not guilty. As a result of the holdup of Eddie’s Cafe, McChan, Jones and Griffin were charged (under indictment numbered 233) with armed robbery and McChan was separately charged (under indictment numbered 237) with carrying a deadly weapon.

All were found guilty of armed robbery. On the theory that there had been a merger of offenses, McChan was found not guilty under the separate indictment. 1 As a result of the holdup of Lou’s Liquor Store, all of the appellants were charged (under indictment numbered 230) with armed robbery and were found guilty. As before, the separate deadly weapon charge against McChan (under indictment num ¹⁵³ bered 235) was held to have merged with the armed robbery charge. As a result of the holdup of the Ensor Lounge, all of the appellants were charged (under indictment numbered 228) with armed robbery and were found guilty and McChan was found not guilty (under the separate indictment numbered 238) of the deadly weapon charge.

As a result of the attempt to rob Howard’s Liquor Store a second time, Jones, Griffin and Bethea were charged (under indictment numbered 229) with attempted armed robbery. Griffin was found not guilty. Jones and Bethea were found guilty. Bethea was charged (under indictment numbered 231) with an assault with intent to murder and (under indictment numbered 232) with carrying a deadly weapon, and was found not guilty on both charges.

While Officer Arnold was patrolling his post in the vicinity of the attempted holdup of Howard’s Liquor Store he heard what sounded like a shotgun blast. As he continued walking in the direction from which the sound came, the officer saw a man (later identified as Jones) running towards him. When the man saw the officer, he slowed to a walk and crossed to the other side of the street. The officer also crossed the street, spoke to the man, and noticing that a wound on his head was bleeding, suggested that he retrace his steps.

On arriving at the scene of the holdup, the officer learned that there had been an attempted robbery, and, seeing blood in the area of his abdomen, asked the man if he had been shot. He indicated that he had been and was taken by the officer in a police car to a hospital where he was treated for the abdominal wound. He remained there for a week. During a part of that time his condition was serious.

At the scene, Lieutenant Goodrich and Sergeant Adams learned that both participants had their faces covered with black bandannas or scarves and that the one who was not immediately apprehended weighed over 150 pounds, was 25 to 30 years old, was about 5feet tall and was wearing a long dark car coat. Later, the investigating officers went to the hospital to question the one who had been shot, but he refused to give them his name or address or any other information. Thereafter, having returned to the police station, the police continued the interrogation of those who had witnessed the attempted robbery, includ ¹⁵⁴ ing McChan, who, it appeared, was a customer at the time of the holdup. During the course of the continuing investigation, the police received an anonymous telephone call implicating Bethea as the participant who got away as well as information as to where he lived.

The police proceeded forthwith to investigate the tip. When they arrived at the address given, one officer went to the rear of the house. When one of the other officers knocked on the front door, a man, fitting the general description the police had previously received of the other participant, appeared at a second story window with a black scarf on his head. On seeing the police, he came downstairs without the scarf and opened the door.

It was Bethea. He was taken to the police station for questioning. On arriving there and before entering, Bethea informed the police that the robbery weapon had been hidden in the apartment of McChan (a relative of his) and went with the police to the apartment. McChan, who had been previously questioned and released as a witness, was at home, and the police, claiming he granted permission, entered the apartment and searched it.

They found the wooden part of the shotgun (hereinafter referred to as “the wooden part”) concealed behind a cabinet in the kitchen and McChan was arrested forthwith. When the police inquired of him as to the whereabouts of the other parts of the shotgun, he told them they could have been taken by one of several recent visitors, including Griffin, and directed the police to a nearby garage where they found Griffin asleep in an automobile. He was also arrested without a warrant. After their arrest, Griffin and Bethea informed the police that Shelly had participated in one or more of the holdups either as a lookout or as a driver of the automobile they used as a conveyance.

Shelly, as were all other participants, was also arrested without a warrant before the end of the day (January 9, 1964) on which the last crime— the second holdup of Howard’s Liquor Store—was committed. All of the appellants, except Jones, made one or more extrajudicial statements to the police either on the day of the arrests or sometime during the two following days. The Jones statement was made after he was discharged from the hospital a week later. Besides the oral statement to the police on January ¹⁵⁵ 9 concerning the whereabouts of the shotgun used in the holdups, Bethea made three other statements.

In his first written statement, made the same day as the oral statement, he admitted that he was the lookout man at the Ensor Lounge holdup committed by McChan, Griffin and Jones and received a part of the money taken. In the second written statement made on January 10, Bethea, besides restating his participation in the Ensor Lounge robbery, admitted that he was also the lookout at the holdup of Lou’s Liquor Store carried out by McChan, Griffin and Jones. Bethea made another statement on January 11 but it was not admitted in evidence. Griffin made two written statements bn January 9.

In the first one, he admitted that he participated with McChan and Jones in the holdup of Eddie’s Cafe. In the second statement, he admitted that he also participated in the holdups at Lou’s Liquor Store and the Ensor Lounge with McChan, Jones, Bethea and Shelly. A third statement made by Griffin on January 11 was not admitted in evidence. Shelly admitted in a statement made on January 10 that he had participated (as the driver of the automobile) in the holdups of Lou’s Liquor Store and the Ensor Lounge.

In the statement he made on January 11, McChan admitted participating in the holdups of Eddie’s Cafe, the Ensor Lounge and Lou’s Liquor Store. He also admitted having possession of the shotgun but claimed it belonged to Jones. The complete statement made by Jones on January 16 was not admitted in evidence but (by agreement of the parties) three of the five parts of the statement were read into the record. Therein, Jones admitted his participation in the holdups at Eddie’s Cafe, the Ensor Lounge and Lou’s Liquor Store.

After the arrest of the appellants, and before some of the statements of the arrestees had been taken, the police entered the rear yard of the premises in which McChan had an apartment, and, without a warrant, searched for and seized the two missing parts of the shotgun, which, when assembled with the wooden part found in the apartment, made a complete shotgun. No part of the shotgun had been recovered when Bethea made the oral statement to the police. Nor was any part of the weapon exhibited to Jones while he was making his statement. But the wooden part was shown to Bethea during the taking of ¹⁵⁶ his first and second written statements; to Griffin when he was making his first and second statements; and to Shelly when he was giving his statement to the police.

The reassembled shotgun was exhibited to Bethea and Griffin when they made their last statements and at the time McChan was giving his statement to the police. Although McChan moved for a severance at the same time he moved for the exclusion of all witnesses, including the three codefendants he intended to call as defense witnesses, the motions' were denied and all five defendants were tried together by the lower court (Harris, J.) sitting without a jury. At the outset of the trial, all appellants moved to suppress all evidence obtained from them after their allegedly illegal arrests and as the result of the alleged unlawful searches for and seizures of the constituent parts of the shotgun. Each of the appellants (on the ground they were involuntarily made) also objected to the admission in evidence of the statement or statements they had given the police after they were arrested.

As to the arrests, the court ruled that there was reasonable grounds or probable cause for the arrest of all appellants, except that of Griffin which it held to be illegal. As to the searches and seizures, the court, finding that the search of the apartment was permissive, held that the seizure of the wooden part was lawful, but it was never offered in evidence. And the court, holding that the search for and seizure of the other parts of the shotgun without a warrant was unlawful, excluded them as evidence. As a result none of the tangible evidence seized was ever admitted in evidence.

As to the extrajudicial confessions, the court, finding that Griffin and Bethea had been confronted with the reassembled shotgun during the time they were making their last confessions, ruled that they were inadmissible. Finally, the court, having heard the evidence of the State as well as the appellants concerning the purported voluntary and involuntary character of the other confessions, concluded that they had been freely and voluntarily given and were therefore admissible evidence. While there are other contentions to be decided when we consider the cases against the appellants separately, it is apparent that the most important questions (which are common to most ¹⁵⁷ of the cases) concern the legality of the arrests, the lawfulness of the searches and seizures and the admissibility of the extrajudicial confessions. We shall therefore examine the applicable law on these points first and apply it to the particular facts of the cases against each of the appellants as circumstances may require.

Concerning the Arrests The invariable rule is that a police officer without a warrant lacks authority to make an arrest in a felony case unless he has reasonable grounds or probable cause to believe at the time of the arrest that a felony has been committed and that the person arrested had committed the offense. Murray v. State, 236 Md. 375 , 203 A. 2d 908 (1964) ; Young v. State, 234 Md. 125 , 198 A. 2d 91 (1964); Edwardsen v. State, 231 Md. 332 , 190 A. 2d 84 (1963); Mulcahy v. State, 221 Md. 413 , 158 A. 2d 80 (1960). As was pointed out in Young , at p. 129 (as well as in Bdwardsen and Mulchay), reasonable grounds or probable cause “exists when the facts and circumstances within the knowledge of the officer, or of which he had reasonably trustworthy information, are sufficient to warrant a reasonably cautious man believing that a felony had been committed.” Necessarily therefore, the question as to whether or not a person was lawfully arrested depends on the facts and circumstances in each case. An arrest has been defined as “the detention of a known or suspected offender for the purpose of prosecuting him for a crime.” Cornish v. State, 215 Md. 64, 67 , 137 A. 2d 170, 172 (1957).

As that case points out there is a detention only when there is a touching by the arrestor or when the arrestee is told that he is under arrest and submits. Where there is no touching, the intention of the arrestor and the understanding of the arrestee are determinative, for in order for there to be an arrest in such case, there must always be an intent on the part of one to arrest the other and an intent on the part of such other to submit. When one is approached by a police officer and merely questioned as to his identity and actions, this is only an accosting and not an arrest. See also Kauffman, The Law of Arrest in Maryland, 5 Md. L. Rev. 125 , 131; 5 Am.Jur.2d, Arrest, § 1; 6 C.J.S., Arrest, § 1. ¹⁵⁸ Concerning the Searches and Seizures There is, of course, no constitutional prohibition against search and seizure: the only requirement is that they must not be unreasonable.

Amendment IV of the Constitution of the United Statesi; Article 26 of the Maryland Declaration of Rights. Whether or not a search is unreasonable depends on the facts and circumstances in each case and is a question for the courts to decide. The general rule is that the search of a person or his property without a warrant and the seizure of things which are evidence of the commission of a crime is unreasonable and therefore unlawful. Buettner v. State, 233 Md. 235 , 196 A. 2d 465 (1964); Agnello v. United States, 269 U. S. 20 (1925).

But there are well recognized exceptions to the genral rule. The search of a person without a warrant incident to a lawful arrest is not unreasonable. Gross v. State, 235 Md. 429 , 201 A. 2d 808 (1964). And under some circumstances a search of one’s property may be made without a warrant as, for example, when the search is permissive.

Armwood v. State, 229 Md. 565 , 185 A. 2d 357 (1962). Moreover, the right of immunity from unreasonable search and seizure is personal and one who disclaims ownership or other possessory interest has no right to protest the legality of a search and seizure. Carter v. State, 236 Md. 450 , 204 A. 2d 322 (1964). Concerning the Extrajudicial Confessions While two somewhat unusual factors concerning the admissibility of confessions are presented by these cases and must be considered, the ultimate test of admissibility, as it has always been, is still