Mullaney v. State

Murphy, C.J., delivered the opinion of the Court. Appellant was found guilty by a jury in the Circuit Court tor Baltimore County of possession and control of narcotics (cannabis), and was sentenced by the court to five years under the jurisdiction of the Department of Correction. On this appeal he contends that the trial court erred when it denied his pretrial motion to suppress evidence seized at the time of his arrest, and in admitting such evidence over his objection at the trial. ²⁵¹ I The Motion To Suppress Evidence Appellant moved to suppress as evidence in the case approximately eight pounds of cannabis (marihuana) and other related tangible items seized at the time of his arrest, as well as certain incriminatory admissions which he made to the police shortly after his arrest. The motion was based on the ground that appellant had been unlawfully arrested and that the warrantless search of his room and person, and the taking of his oral statements were illegal as comprising the fruits of an illegal arrest in violation of the Fourth Amendment to the Federal Constitution.

A hearing was held on appellant’s motion out of the presence of the jury, at which time Lieutenant Thomas Mitchell of the Baltimore County Police Bureau, Narcotics Squad, testified that at 9:30 p.m. on August 2, 1967, he “received information” while at his home from Detective Kratsch of the Baltimore City Narcotics Squad, as the result of -which he went to the Penn Motel in Baltimore County, arriving there at 10 :00 p.m-.; 1 that he there checked the register “which verified some of the information that I had received from the City”; that he ascertained that appellant was registered in room #222 and that while he did not know him, he had his description as being a white male, twenty to twenty-two years old, 5' 8", 140 pounds, long brown hair and bearded; that he went to his room, knocked on the door and, after failing to receive an answer, he left and kept the room under surveillance; that fifteen minutes later, a person answering appellant’s description, and two other men, entered room #222; that after waiting approximately fifteen minutes, he (Lieutenant Mitchell) and two other police officers, knocked on the door of appellant’s room; that in response to an inquiry from within the room as to “who was there,” he (Mitchell) said “Tommy Carroll”; that one of the occupants of the room, later identified as Richard Mainolfi, then opened ²⁵² the door about eight to ten inches, at which time he (Mitchell) “flashed” his identification card at Mainolfi, observing at the same time that the room was “a one bedroom affair,” that a man was lying on a bed smoking a cigarette, “his hands cupped around his face in such fashion where you would smoke a marihuana cigarette,” that three cigarettes were beside him on the bed “rolled as a marihuana cigarette,” and that the room was “full of smoke” which he (Mitchell) knew from his experience to be marihuana smoke; that Mainolfi tried to slam the door shut but he (Mitchell) put his “foot in the door” and his “face in the opening,” and also “put some pressure on the door;” that thereafter Mainolfi “permitted us entry”; and that they then seized from within the room a number of marihuana cigarette butts, a briefcase containing three blocks of marihuana kilo and another block of marihuana then being processed. Lieutenant Mitchell had neither a search warrant nor an arrest warrant when he went to the motel. He testified on cross-examination that his purpose in stating that he was Tommy Carroll was “to get them to open the door.” 2 He further testified that he felt he had sufficient cause to enter the room based on “the information and the specific way it was received by Detective Kratsch, and the description of the subject and the subject was there”; that he had “the information and the detail of the information how it was secured from Detective Kratsch, whom I’m very familiar with and with whom I have worked on a lot of occasions, and he gave me this information”; and that he knew that Kratsch’s information had been obtained from an informer of whose reliability he (Mitchell) had no knowledge. The court denied appellant’s motion to suppress, holding that the evidence indicated that Mitchell “had received from Officer Kratsch information that the defendant was involved in transr portation and possession of marihuana,” and that it was with “that information at hand” that Mitchell went to the motel, having theretofore been provided with appellant’s detailed description.

The court ruled, alternately, that even if Lieutenant Mitchell did not have probable cause to arrest at the time he went ²⁵³ to the motel, he thereafter acquired probable cause when the door was opened and he could see that marihuana was possessed by the occupants of the room. The constitutional validity of the search and seizure manifestly depends upon the constitutional validity of appellant’s arrest. And whether an arrest for a felony without a warrant is constitutionally valid necessarily turns upon whether, at the moment the arrest was made, the arresting officer or the police acting as a team had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing a felony. 3 McCray v. Illinois, 386 U. S. 300 ; Beck v. Ohio, 379 U. S. 89 ; Draper v. United States, 358 U. S. 307 ; Parrota v. State, 233 Md. 526 ; Simms v. State, 4 Md. App. 160. Where, as here, the constitutional validity of the warrantless arrest was properly challenged by a pretrial motion to suppress evidence, it is the function of the court to determine for itself the persuasiveness of the facts relied upon by the police to show probable cause for the arrest —a function which it manifestly cannot perform unless it is informed of the facts upon which the arresting officer acted.

See Beck v. Ohio, supra; Giordenello v. United States, 357 U. S. 480 ; Farrow v. State, supra; Edwardsen v. State, 231 Md. 332 . Evidence to show the basis upon which the arresting officer acted in making the arrest, including the nature and details of information received from other law enforcement officers and/or informants, is not only relevant and admissible on the issue of probable cause, but must affirmatively be shown if the State is to carry its burden of proving the legality of the arrest. See Hopkins and Terry v. State, 239 Md. 517 ; Veihmeyer v. State, 3 Md. App. 702 ; Scott v. State, 3 Md. App. 429 . Where the arrest is initiated on hearsay information received from an informant, the State, to establish its legality where challenged, must sufficiently inform the trial judge of some of the under - ²⁵⁴ lying circumstances from which the informant concluded that a crime was being or had been committed by the person to be arrested, and some of the underlying circumstances from which the police concluded that the informant, whose identity need not be disclosed, 4 was credible or his information reliable.

McCray v. Illinois, supra; Beck v. Ohio, supra. Thus, in Draper v. United States, supra, the Supreme Court held that in testing the sufficiency of probable cause for a warrantless arrest, the arresting officer may rely upon information received through an informant, rather than upon his direct observations, so long as the informer’s statement is reasonably corroborated by other matters within the officer’s knowledge. In that case, a “special employee” of the Bureau of Narcotics (in reality a paid government informer), who had previously given reliable information, told federal agents that the defendant, whom he described, was peddling narcotics, and that he would be at a designated place on a designated date with a tan zipper bag and would be carrying narcotics. The defendant, being observed by federal agents under conditions which accorded precisely with this information, was arrested and the arrest was upheld solely upon the informant’s detailed statement that the defendant was peddling narcotics, as corroborated by the fact that the informant’s description of the defendant’s appearance, and of where he would be at a particular time — matters in themselves totally innocuous — agreed with the arresting officer’s observations (thus providing a substantial basis for crediting the hearsay).

In Beck v. Ohio, supra, the defendant was arrested without a warrant for violating the gambling laws. By pre-trial motion the defendant moved to suppress evidence seized from his person at the time of his arrest. To establish the legality of the arrest the State called the arresting officer as its sole witness. He testified that he had “a police picture” of the defendant and ²⁵⁵ “knew what he looked like,” that he knew the defendant had “a record in connection with clearing house and scheme of chance,” that he had “information,” that he had “heard reports,” that “someone specifically did relate that information,” and that he “knew who that person was.” The Supreme Court, in concluding that the State failed to establish probable cause for the arrest, held that there was “nowhere in the record any indication of what ‘information’ or ‘reports’ the officer had received, or, * * * from what source the ‘information’ and ‘reports’ had come”; that all the trial court was told “was that the officers knew what the petitioner looked like and knew that he had a previous record of arrests or convictions for violations of the clearing house law,” but that the record did not contain “a single objective fact to support a belief by the officers that the petitioner was engaged in criminal activity at the time they arrested him.” The court concluded that on the record before it, the State failed to make the required showing of “what the informer actually said, and why the officer thought the information was credible.” In McCray v. Illinois, supra, the defendant was arrested on the street without a warrant for possessing narcotics.

A motion to suppress the evidence having been filed, it was incumbent upon the State to establish probable cause for the arrest. To this end the two arresting officers each testified in considerable detail that they had talked with an informant on the morning of the arrest who had told them that defendant was then selling narcotics at a particular place and at a particular time; that the informant pointed out the defendant to the officers; and that when the defendant saw the police car, he hurriedly walked away. The officers testified that they had been acquainted with the informant for over a year, that he had supplied them with information about narcotics activities over fifteen times, and that this information had proved accurate and resulted in numerous arrests and convictions, which the officers specifically delineated in open court. In upholding the legality of the arrest, the court found that each of the officers had testified with specificity as to what the informer actually said and why the officers thought the information was credible.

In capsule form then the correct rule is as stated in Hwnd ²⁵⁶ ley v. State, 3 Md. App. 402 , at page 405, namely that information furnished to a law enforcement officer by an informer, together with the officer’s personal knowledge, may serve as the basis of sufficient probable cause for a warrantless arrest for a felony and search incident thereto if the trial court is informed “with specificity what the informer actually said, and why the officer thought the information was credible, and the court is satisfied such information was sufficiently reliable and reasonably trustworthy to give the officer, as a prudent man, probable cause to believe that the accused had committed or was committing a felony.” Compare United States v. Ventresca, 380 U. S. 102 ; Rugendorf v. United States, 376 U. S. 528 , and Aguilar v. Texas, 378 U. S. 108 , all cases focusing on the legality of search warrants issued on information received from informants. Applying these principles to the evidence introduced at the hearing on the appellant’s motion to suppress, we hold that the State failed to show probable cause for the arrest prior to the time that the officers knocked on the door to appellant’s room. All that the evidence shows is that lieutenant Mitchell received undisclosed and unspecified information from a reliable police officer, as a result of which he immediately went to the Penn Motel, ascertained that appellant, whose description he somehow had, was registered there, and observed him and two others enter his room at the motel. There was no evidence to show that Lieutenant Mitchell had been informed by anyone or that he had any personal information on his own, that appellant had committed or was committing a crime, or even that he was suspected of committing a crime.

It is, of course, possible that the police, acting as a team, had probable cause to make the arrest prior to the time that they knocked on appellant’s door. See Jones v. State, 242 Md. 95 . But the State’s failure to prove it by proper evidence at the suppression hearing compels us to conclude that the trial judge erred in his ruling that probable cause existed for the arrest prior to the time that Lieutenant Mitchell knocked on appellant’s door. We agree, however, with the alternative conclusion reached by the trial judge at the conclusion of the hearing on the motion to suppress, namely that Lieutenant Mitchell had probable cause to arrest appellant when the door to his room was opened ²⁵⁷ and the officer, without making an entry, instantly observed that the room was full of marihuana smoke, that there wrere marihuana cigarettes in plain sight on the bed, and that one of the occupants of the room was smoking a cigarette in the distinctive fashion of a marihuana smoker.

As heretofore indicated, the legality of the arrest is measured by the existence of probable cause at the time it is made and we think it clear that in the situation in which Lieutenant Mitchell found himself when the door to the room was opened, he had at that moment probable cause to believe that a felony was then being committed. That the smell of distinctive odors can constitute evidence of crime and of probable cause is well settled. United States v. Ventresca, 380 U. S. 102 ; Rugendorj v. United States, 376 U. S. 528 ; Johnson v. United States, 333 U. S. 10 . This evidence, coupled with the visual observations made by Lieutenant Mitchell simultaneous with the opening of the door and prior to his entrance into the room, clearly provided, in our judgment, probable cause upon which the felony arrest could lawfully be based.

The mere fact by itself that Lieutenant Mitchell may have intended to make an arrest when he knocked on the door of appellant’s motel room does not without more, constitute the officer a trespasser, there being no right of a citizen, constitutional or otherwise, which immunizes him from having a policeman knock on his door during reasonable evening hours. And as Lieutenant Mitchell did not break or physically force open the door to appellant’s room, the rule requiring that police officers seeking to make an arrest must (with certain exceptions) give proper notice of their purpose and authority before forcefully effecting entry is not applicable to the facts of this case, there being no breaking involved, constructive or actual. See Henson v. State, 236 Md. 518 ; Berigan v. State, 2 Md. App. 666 . The Supreme Court recently observed in Sabbath v. United States, 391 U. S. 585 , that entry into private premises obtained by ruse has been viewed as not involving a “breaking,” the rule being that entrance gained by the use of deception for the purpose of effecting an arrest is constitutionally permissible so long as force is not applied.

Smith v. United States, 357 F. 2d 486 (5th Cir.) ; Davis v. United States, 327 F. 2d 301 (9th Cir.) ; Leahy v. United States, 272 F. 2d 487 (9th Cir.) ; United ²⁵⁸ States v. Locklear, 237 F. Supp. 895 (N. D. Calif.). See particularly Dickey v. United States, 332 F. 2d 773 (9th Cir.), where, as here, an officer without a warrant gained entry into the defendant’s hotel room upon the misrepresentation that he was a person known to the defendant. The fact then that the door to appellant’s room was opened in response to Lieutenant Mitchell’s deception that he was Tommy Carroll does not invalidate the arrest under the circumstances of this case. Appellant places reliance on Johnson v. United States, 333 U. S. 10 .

In that case federal officers received information from a confidential informer that “unknown persons” were smoking opium in a designated hotel and that it could be smelled in the hallway. Federal agents went to the hotel, smelled the odor of burning opium and traced it to a particular room.