Nilson v. State

Murphy, C. J., delivered the opinion of the Court. Appellants Nilson, McCoy, Campbell, Watford and Johnson were found guilty of armed robbery and related offenses by a jury at a joint trial in the Criminal Court of Baltimore. The convictions of each appellant, except Watford, were affirmed on appeal by the Court of Special Appeals in an unreported per curiam decision (Nilson, et al. v. State, No. 138, Sept. Term, 1973). 1 We granted certiorari limited to the question whether the trial court erred in failing to suppress incriminating evidence seized by the police following the warrantless arrests of the appellants inside an apartment occupied by them. As shown by the evidence developed on the merits of the appellants’ motion to suppress, on February 23, 1972, at approximately 9:40 a.m., the Belmar Building and Loan ¹⁸¹ Association was held up at gunpoint by three negro males wearing ski masks; they fled in a 1967 gray Pontiac bearing Connecticut license tag GW-9762, taking approximately $3,000, including $200 in marked or “bait” money.

The robbers were described by the Association’s assistant manager as being thin, one approximately 6'2" in height and the other two approximately 5'9" tall, armed with a shotgun, a carbine rifle, and a revolver. Another employee described one of the robbers as “rather heavy set,” approximately 5'11" tall, armed with a shotgun; another as taller and thinner, approximately 6' tall, armed with a “pump type” rifle; and the third as approximately 5'7" tall, armed with a revolver and carrying a “little zipper bag.” A report of the armed robbery, containing a description of the robbers and the Pontiac in which they fled, was promptly broadcast over the police radio. Shortly after 10:00 a.m. the police were notified by Anna Orndorff that, earlier that morning, she had observed a negro man park a 1971 green Ford Torino on Raspe Avenue, a few blocks from the Association’s office, and drive off in a small white foreign car bearing Pennsylvania license tags occupied by two other negro males; that twenty minutes later, she observed a gray Pontiac, Connecticut license tag GW-9762, moving at a fast rate of speed, turn on to Raspe Avenue; that the same three negro males got out of the Pontiac and drove off in the Torino; that her son William followed the Torino in his car for a short distance and observed the occupants park the Torino and board a bus, after which two of the men got off the bus and entered Yellow Cab No. 558. Immediate police investigation revealed that the two negro males had been discharged from the cab at Callow Avenue and Whitelock Street.

Shortly before 11:00 a.m. the police located the abandoned Pontiac which the robbers had driven from the scene of the crime. It was ascertained that the vehicle had been stolen from its owner on the evening of February 22. The Pontiac was then searched and a one-hour dry cleaning ticket was discovered under the front passenger seat in the name of “McCoy” with an address listed as “2458 Callow.” This ¹⁸² information was immediately broadcast over police and FBI radio and approximately fifteen Baltimore City police officers and thirty FBI agents promptly responded to the three-story, fifteen unit, multiple dwelling apartment house at that address. A white Peugeot with Pennsylvania license tags was observed by the police parked in the immediate vicinity of the apartment building.

Police investigation conducted inside the apartment building, according to the testimony of Sergeant Joseph Lovitt, Jr., “revealed that there were three persons living on the third floor who had a foreign made car that had Pennsylvania license tags . . . .” Sergeant John Conroy spoke with Joseph Adams, who resided in apartment 10, and was told that several men were living on the third floor in apartment 12; that three men left that apartment at approximately 8:00 a.m. that morning, carrying a “checkerboard” bag and drove off in a white automobile with Pennsylvania tags “that they always use”; that the same three men returned to that apartment between 11:00 and 11:30 a.m.; and that shortly thereafter, a fourth man went into the apartment. Officer Conroy promptly relayed this information to Sergeant George Shriner, the supervisor of the investigation. Shriner’s investigation had revealed that apartment 12 was rented by Frank Watford and that the apartment was frequented by other men at various times. At approximately 12:45 p.m., Shriner with other officers proceeded to apartment 12 to “effect the arrest of McCoy if he was on the premises or any other person that fit the descriptions of the wanted subjects in . .. [the] robbery.” Shriner knocked on the door.

Appellant Monroe Campbell, Jr., a 6' negro male weighing approximately 160 lbs., answered the door, but refused to admit Shriner, who identified himself as a police officer and stated his purpose, unless he had a search warrant. Shriner observed two other negro males in the apartment and, upon hearing noise coming from the back room, he “pushed the door open” and placed Campbell under arrest. Appellant Nilson was arrested in the front of the apartment. Sergeant Lovitt went to the rear of the apartment and arrested appellants ¹⁸³ ■Watford, Johnson and McCoy in the “middle” bedroom, “fd]ue to them fitting the general description as to the other two persons seen at the bank, 5'9", 150 pounds — ... 5'6", 130 pounds.” A carbine rifle, observed in an open cupboard four feet from the three men, was seized and a search of Johnson’s person produced $53 in currency, including $40 in “bait” money.

Lovitt also seized a shotgun sticking out of a plaid clothing bag in the closet of the rear bedroom, visible to him from the middle bedroom. Two ski masks and a loaded revolver were found under a mattress in the rear bedroom, and a boot containing $970 in $10 bills was discovered in a cupboard in the middle bedroom; these items were also seized by the police. No arrest or search warrants had been obtained. In support of their motion to suppress the evidence seized from the apartment, the appellants contended that Sergeant Shriner’s warrantless entry into apartment 12 and Campbell’s warrantless arrest were illegal because there was no probable cause to believe Campbell was one of the robbers; that the seizure of evidence as an incident to that illegal entry and arrest was also illegal; and that, even assuming that the police had probable cause to arrest Campbell, their right to search extended only to his person, and the area within his immediate reach, and did not include the right to search the middle and rear bedrooms where the appellants McCoy, Watford, and Johnson were arrested and the incriminating evidence was seized.

The trial judge concluded from the evidence that the police team investigating the robbery had probable cause to believe that a felony had been committed and that the persons who committed it were in apartment 12; that Campbell fit the description of one of the robbers and that his warrantless arrest inside the apartment was valid; that the police had probable cause to believe that the other two robbers were also on the premises, together with their weapons and money taken during the robbery; that exigent circumstances existed justifying the police to look for the other robbers in the apartment and that their subsequent arrests without warrants were lawful; that it was therefore lawful to search ¹⁸⁴ Johnson’s person incident to his arrest, and to seize the guns in plain view in close proximity to the arrested men. The trial judge granted the motion to suppress as to the ski masks and revolver found under the mattress, and the boot containing $970 found in the closet; he ruled that seizure of these items was invalid in the absence of a search warrant. As a general rule, 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. McCray v. Illinois, 386 U. S. 300 , 87 S. Ct. 1056 , 18 L. Ed. 2d 62 (1967); Farrow v. State, 233 Md. 526 , 197 A. 2d 434 (1964); Mullaney v. State, 5 Md. App. 248 , 246 A. 2d 291 (1968).

The rule of probable cause is a nontechnical conception of a reasonable ground for belief of guilt, requiring less evidence for such belief than would justify conviction, but more evidence than that which would arouse a mere suspicion. Mobley and King v. State, 270 Md. 76 , 310 A. 2d 803 (1973); Gilmore v. State, 263 Md. 268 , 283 A. 2d 371 (1970). On the record in this case, we agree with the conclusion reached by the trial judge and the Court of Special Appeals — that at the time the police entered apartment 12, they had probable cause to believe that the robbery had been committed by persons then located on the premises. Indeed, as the evidence so dramatically reveals, within minutes after the crime was committed, the police were closely monitoring the movements of the suspected felons and the information which they received led unmistakably to the apartment house at Callow Avenue, and particularly to apartment 12.

The police had general descriptions of the three robbers. They knew that at least three men were then in apartment 12 — the same three that earlier that morning had driven off in the white Peugeot, a vehicle previously identified as having been used by the robbers. That one of the robbers was named McCoy was ¹⁸⁵ deemed likely because a ticket bearing his name and his Callow Avenue address was found in the stolen Pontiac which was used as the getaway car. Sergeant Shriner’s observation upon requesting entry to apartment 12 that Campbell fit the general description of one of the robbers added materially to the probable cause then possessed by the police.

Appellants urge that even if probable cause existed for the police to believe that they had committed a felony, and were inside apartment 12, the forced entry by the officers into the premises without either a search or arrest warrants vitiated the subsequent arrests and searches. It is true, of course, that as a general rule an entry made in violation of constitutional standards will ordinarily nullify the legality of such arrests and accompanying searches. Ker v. California, 374 U. S. 23 , 83 S. Ct. 1623 , 10 L. Ed. 2d 726 (1963); Gouled v. United States, 255 U. S. 298 , 41 S. Ct. 261 , 65 L. Ed. 647 (1921). At common law it was recognized that a peace officer lawfully seeking to arrest an individual in a dwelling, either by authority of an arrest warrant or under circumstances making a warrant unnecessary, must give proper notice of his purpose and authority and be denied admittance, before he could use force to break and enter to effectuate the arrest.

See Henson v. Maryland, 236 Md. 518 , 204 A. 2d 516 (1964); Berigan v. State, 2 Md. App. 666 , 236 A. 2d 743 (1968); Kauffman, Law of Arrest in Maryland, 5 Md. L. Rev. 125 (1940-41); 5 Am. Jur. 2d Arrest §§ 86-93; Miller v. United States, 357 U. S. 301 , 78 S. Ct. 1190 , 2 L. Ed. 2d 1332 (1958); Accarino v. United States, 179 F. 2d 456 (D.C. Cir. 1949); United States v. Monticallos, 349 F. 2d 80 (2nd Cir. 1965); Dickey v. United States, 332 F. 2d 773 (9th Cir. 1964). See also Lankford v. Gelston, 364 F. 2d 197 (4th Cir. 1966). In Ker v. California, supra, the Supreme Court held on the particular facts there present that there was no Fourth Amendment violation in a forced entry into a dwelling made by the police without either a search or arrest warrant on probable cause to believe that the occupants had committed