Mulcahy v. State

Horney, J., delivered the opinion of the Court. William McClelland, George M. Stein and Roland F. Mulcahy (McClelland, Stein and Mulcahy, or, collectively, the defendants)—and James B. Gatton (Gatton), better known as ⁴¹⁷ Edward B. Armstrong, who plead guilty and did not appeal—were indicted in Baltimore City on a four-count indictment for breaking a warehouse, grand larceny and receiving stolen goods and with being rogues and vagabonds. The defendants plead not guilty as to each count and elected to be tried by a jury. They were found guilty of breaking the warehouse and each was sentenced to seven years’ imprisonment.

This appeal [three in one record] is from the judgments entered and sentences imposed. The warehouse of the Apex Express Company (Apex) on Georgetown Road was burglarized in the early morning of February 1, 1959. An eye-witness—the rear of whose home was adjacent to the warehouse—saw two men enter the building and go up the stairway between 2:15 and 2:20 a.m., and saw three men return “with what appeared to be a safe.” Only two of them were carrying the safe. On the way out to the street something must have scared them for they “dropped the safe and two [of them] ran in behind the building which was directly beneath [the eye-witness’] window,” where they waited for a few seconds and then ran to the front of the warehouse and “picked up the safe.” The eye-witness called the police and informed them of what he had observed and when they arrived on the scene he gave them a general description of the clothing worn by the men and boy he had seen.

At about the same time [2:15 a.m.] that the eye-witness was watching these events from the rear of his home, an officer [James Sanders] on his regular route in a post car had noticed an automobile parked approximately one hundred yards from the warehouse and purposely driving slowly by and close to it, he was able to observe the make, colors, year model and the fact that it had a “sprung hood.” At the same time he saw “one subject behind the steering wheel” and another outside “on the passenger side.” He continued on his route, but when he received a call over the police radio a few minutes later that “someone was with a safe” in the 3200 block of Georgetown Road, he returned immediately to the warehouse where he interviewed the eye-witness and his wife. Within only a minute or two thereafter a police sergeant ⁴¹⁸ [Robert Rarkin] also arrived on the scene. An inspection by the officers disclosed that the front door as well as a door on the second floor had been forced and that "there was no safe there.” Thereupon, the known information was called in to headquarters and was promptly broadcast to the post and prowl cars at 2:28 a.m. While they knew a safe was missing, the police did not know the estimated money contents until they had been informed by the terminal manager of Apex after the suspects had been arrested.

When the message was received by Officer John Mc-Gahagan he was sure that the description of the automobile as a two-tone blue and cream or white Buick fit that of an automobile claimed by McClelland, whom the officer knew. The broadcast, in addition to informing all officers on patrol that a “safe burglary” had been committed, had also related that there was “more than one” person involved and that one of the suspects had a “dark blue coat, one had a black jacket and one was wearing a brown topcoat.” Upon going to Mc-Clelland’s home and finding him absent, Officer McGahagan and the officer riding with him cruised around until they located the McClelland automobile between 2:35 and 2:40 a.m. “about a half a mile, maybe a mile” from the warehouse. They signaled the operator of the automobile to stop and when Mc-Clelland came over to the prowl car to inquire why he had been stopped, the officer sent him back to his automobile to get his registration card and called for additional assistance. Subsequently he arrested all four suspects.

A crow bar, a metal bar, a steel drill, an extension light and cord and some gloves were found in the Buick at the time of arrest. The defendants, along with Gatton, were taken to the district police station where they were interrogated and their clothing taken for analysis. Rater, such analyses revealed that particles of paint removed from the clothing of McClelland and Stein were in all probability the same as the paint on the first floor point of entry to the warehouse. All of the defendants-appellants conceded that they had been previously convicted of other offenses.

Gatton, a seventeen-year old boy, immediately confessed his ⁴¹⁹ participation, implicated the other three defendants and took the police to a Chrysler automobile also belonging to Mc-Clelland. The stolen safe was found in the trunk of this automobile, which was parked in the rear of McClelland’s home. Gatton related then and testified at the trial that he and the defendants drank together until about 1:55 a.m., when they drove in McClelland’s Buick to the vicinity of the warehouse and parked on Georgetown Road. As soon as they had parked Mulcahy went over to the warehouse with a crow bar while McClelland and Stein remained in the automobile and he (Gatton) stood on the outside.

During that time a police car went by. When it had gone, Stein and the boy joined Mulcahy, entered the building and took the safe. Mulcahy and the boy carried the safe, but dropped it and hid when they saw headlights approaching. Thereafter they carried the safe away and stowed it in the trunk of the Chrysler.

Gatton further testified that when they were stopped and arrested they had been “riding around” to “get another” safe. During the course of his interrogation at the station, immediately after his arrest, Mulcahy admitted that he had been in two taverns drinking with McClelland, Stein and Gatton and had then ridden around for awhile but insisted they were going to get something to eat when the police picked them up. But later that same day when he was informed, after he had sobered up, that his companions had made statements, that one of them had pointed out the whereabouts of the safe and that all of them [including Mulcahy] would be charged with the crimes committed, Mulcahy remained silent and refused to say anything. In the oral statements made by both McClelland and Stein following arrest, which were neither confessions nor admissions but absolute denials of any complicity in the breaking and theft, and were admitted in evidence without objection, Mulcahy was identified as being with the other participants during the periods before and after the offenses had been committed.

On behalf of himself, Mulcahy testified at the trial that on the night of the burglary he had been drinking heavily, that he left the last tavern they had visited around 1:15 a.m., and did not see his drinking companions again until about 2:30 ⁴²⁰ a.m. when they picked him up in McClelland’s Buick, and that he did not know he was charged with a crime until he “woke up” later in the day. The eye-witness was unable to identify Mulcahy as one of those persons he had seen at the scene of the burglary. Nor was the police officer, who had observed the parked Buick near the warehouse, able to identify the persons he had seen in and along side of the automobile. With respect to the trial of the cases in the lower court, McClelland, in writing, before trial, and all of the defendants-appellants (including McClelland) orally, at the outset of the trial, moved to suppress the evidence to be presented against them on the ground that it had been obtained by illegal search and seizure.

The court did not act on the written motion and when the oral motions were made, it neither determined the question then nor ordered it to be deferred for determination at the ensuing trial, but subsequent rulings clearly indicated an intention to reserve the questions. During the course of the introduction of testimony on behalf of the state, all of the defendants specifically objected to the admissibility of the crow bar and other articles (hereinafter referred to as the “burglary tools”) found in the Buick. At this point the court reserved its rulings on that evidence and all articles then objected to were admitted in evidence one after the other without further objection other than a claim that some of the articles had not been sufficiently identified. At another stage in the state’s case a photograph of the trunk of the Chrysler with the safe in it was offered in evidence and admitted, whereupon McClelland renewed his objection “pursuant to” his earlier motion, but, on this occasion, the court did not rule on the objection.

There was also testimony by several witnesses that the safe and title to the Chrysler were found on the premises occupied by Mc-Clelland, all of which, as well as another photograph of the safe taken after it had been opened, was admitted in evidence without objection. At a still later stage the results of the analyses of the seized clothing of McClelland and Stein were also admitted in evidence without objection. [The result of the analysis of the clothing of Mulcahy was not incriminating]. Finally, at the conclusion of the state’s case, McClelland moved to renew what appeared to be his motion to suppress the evi ⁴²¹ dence, and the court then directed that the record should “show that all motions were renewed and all motions were overruled.” (Emphasis added.) On this appeal all of the defendants contend that such evidence as was obtained as a result of the search of McClelland’s home and automobiles was erroneously admitted in evidence against them. Moreover, McClelland and Stein contend that such evidence as was obtained as a result of the analyses of the clothing they were wearing when arrested was likewise inadmissible.

The first question then—particularly with respect to the seized burglary tools and the clothing they were wearing—is whether the arrest of the defendants without a warrant was lawful. The interrelated second question affecting McClelland only, is whether evidence concerning the title to the Chrysler automobile and the stolen safe — which were seized in a search of the premises occupied by him without a warrant—was admissible. By the third and final question presented, only Mulcahy contends that the evidence was insufficient to corroborate the testimony of the accomplice [Gatton], who admitted participation in the burglary. (i).

Legality of Arrest. The arrest of all of the defendants was lawful. It is true, of course, that Article 26 of the Maryland Declaration of Rights prohibits the search of suspected places and the seizure of persons or property without a warrant, but this provision of the constitution does not prohibit arrest without a warrant when it is lawful and in cases where the public security demands it. In this state it has long been settled that a peace officer may arrest without a warrant, provided there were reasonable grounds to believe at the time of the arrest that a felony had been committed and that the person arrested had committed the offense.

Baltimore & O. R. Co. v. Cain, 81 Md. 87 , 31 Atl. 801 (1895); Kirk & Son v. Garrett, 84 Md. 383 , 35 Atl. 1089 (1896); Edger v. Burke, 96 Md. 715 , 54 Atl. 986 (1903); Brish v. Carter, 98 Md. 445 , 57 Atl. 210 (1904); Freedman v. State, 195 Md. 275 , 73 A. 2d 476 (1950); Edwards v. State, 196 Md. 233 , 76 A. 2d 132 (1950); Kauffman, Law oj Arrest in Maryland, 5 Md. L. Rev. 125 , ⁴²² 159 (1941). In Kirk & Son and Brisk, both supra, it was said, to use the language of the Brisk case at p. 450, that it is “wholly immaterial whether the suspicion arises out of information imparted to the officer by some one else, or whether it is founded on his own knowledge.” Furthermore, in the Kirk & Son case this Court said [p. 406] : “[i]t may be broadly stated that what amounts to probable cause * * * [will be] such reasonable grounds for suspicion of felony as will justify and require an officer to make an arrest.” And in the Edwards case, supra, at p. 237, citing Brinegar v. United States, 338 U. S. 160 (1949), we stated in effect that the substance of all definitions of “probable cause” is a reasonable ground for believing that the person about to be arrested is guilty and that “probable cause exists where the facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.” Moreover, where circumstances make an arrest without a warrant lawful, it is permissible, as an incident to the arrest, to search the person of the suspect and to take into custody and examine the tangible evidence or instruments of the crime, whether upon his person or within his present or immediate possession. Callahan v. State, 163 Md. 298 , 162 Atl. 856 (1932); Carroll v. United States, 267 U. S. 132