Mercer v. State

Thompson, J., delivered the opinion of the Court. Aubrey Mercer, the appellant, was convicted of grand larceny in the Criminal Court of Baltimore, Judge Paul T. Pitcher presiding without a jury. Mercer was sentenced to a term of six years under the jurisdiction of the Department of Correction. He now contends that certain evidence should not have been admitted because its seizure was the result of an illegal arrest and further that the evidence was insufficient to support the verdict.

On October 28, 1967, two Baltimore City Police Officers observed a 1951 Chevrolet truck occupied by three males carrying numerous copper pipes underneath wooden poles. As the pipes, ³⁷² which extended beyond the end of the truck by approximately four feet, did not have a red flag attached as required by law, Md. Code Art. 66⁴ § 275 (Repl. Vol. 1967), the policemen stopped the vehicle. As the truck was pulled to the curb one of the occupants jumped from the vehicle and attempted to run away.

One of the police officers grabbed him but the man broke away. The police officers gave the driver of the truck a ticket for not having a red flag on the pipes. The driver of the truck, one Wardell Proctor, told the two police officers that the man who had run away was the owner of the pipes and that he had asked them to help him take the pipes to be sold and that the pipes had been found in a trash can. Mercer stated that he did not know who the man was that ran away and did not know anything about the twelve foot long copper pipes.

The officers observed that the 23 twelve-foot long copper pipes were attached together by a band and appeared new. The officers placed Proctor and Mercer, who was the third man in the truck, under arrest. Upon arrival at the police station the police unloaded the pipes and found attached a Bethlehem Steel Company tag. Leonard Gartrell, supervisor for Bethlehem Steel Company, identified the pipes from the tag and placed the value at around eight to nine hundred dollars.

The storage area for Bethlehem Steel was examined and it was discovered that the fence securing the yard had been pried open and that the pipes in the upper storage rack were missing. The tag number on the pipes found on the 1951 Chevrolet truck was of the same lot number as those pipes that were found on the lower rack at the storage yard. Both Mercer and Proctor testified and explained that they were flagged down by a man with the pipes, but that they did not know the man, and that he wanted them to help take the pipes to a junk yard to sell. Mercer, who had previously been a self-employed junkman, informed the court that the pipes looked like junk to him.

Mercer had a rather long record of prior convictions. The first contention of Mercer is that the arrest was invalid. He concedes that a police officer may arrest without a warrant for a misdemeanor if he has probable cause to believe that a misdemeanor is being committed in his presence and that the arrestee is the misdemeanant. Ramsey v. State, 5 Md. App. ³⁷³ 563, 567, 248 A. 2d 659 .

In the case at bar the police officers saw the truck being operated in apparent violation of Md. Code Art. 66y2 § 275; therefore they had the proper authority to stop the truck. State v. Sedacca, 252 Md. 207 , (1969). 1 The precise issue here, however, is whether or not all of the circumstances could supply probable cause to believe that the copper pipes were stolen. Since the officers had no prior knowledge of the crime the probable cause, if it existed, has to be found in what came to the officers’ senses at the time of the arrest. And this information must, of course, be much stronger than if the prior knowledge had existed.

We had occasion to review the law on this subject recently in the case of Brown v. State, 5 Md. App. 367 , 247 A. 2d 745 wherein we found the