Oberlin v. State

Murphy, C. J., delivered the opinion of the Court. On October 11, 1968 appellant was charged in a two count indictment with unlawfully possessing and controlling marihuana in violation of Maryland Code, Article 27, Section 277. 1 On April 14, 1969, the court sitting without a jury found him guilty of unlawful possession, the State earlier having abandoned the count charging control. On July 3, 1969 appellant — a first offender — was sentenced to five years imprisonment and fined $1,000. On review of the sentence by a three-judge panel, as authorized by Maryland Code, Article 26, Section 132, it was reduced to three years; the $1,000 fine remained unchanged.

On this appeal, it is claimed by appellant that as he was illegally arrested, the subsequent search of his automobile and seizure therefrom of a quantity of marihuana was likewise illegal; and that the admission into evidence of the incriminating marihuana, over his objection, constituted reversible error. At the trial, Robert Stutman, a special agent of the Bureau of Narcotics and Dangerous Drugs, testified that for nine months prior to arresting appellant he had him and his companion, William Gatlin, under investigation for suspicion of illegally possessing marihuana; that he had “received information” that on the evening of July 26, 1968 appellant “would be picking up a quantity of marihuana” at Gatlin’s apartment; that he (Stutman), ⁴²⁹ accompanied by other officers, went to the area of Gatlin’s apartment at 7:00 p.m. on July 26; and that they observed appellant arrive at Gatlin’s apartment at 7:30 p.m., leave at 8:30 p.m., return at 9:45 p.m., and leave again at 11:00 p.m. carrying “a brown paper shopping type bag,” which he put in the back seat of his automobile. Stutman testified that appellant then drove off; that they followed him “in an official government vehicle” and when appellant stopped his car at a stop sign, they pulled up very close alongside him — “two or three inches away,” —at which time he (Stutman) observed “the paper bag in the back seat, opened at the top, and I could see a white, brick-shaped form which appeared to me to be, in my opinion, a brick of marihuana”; that at this time he (Stutman) “hit the siren” of his car, got out of his vehicle and yelled to appellant: “Federal agent. You’re under arrest”; and that appellant then attempted to drive off, but was prevented by the officers from doing so.

Agent Stutman gave a detailed account of his background and experience. At the time of the arrest, he had been an agent for three and one-half years; he was a graduate of the Treasury Law Enforcement Officer Training School and of the Advanced School of the Bureau of Narcotics; he had worked in an undercover capacity in the Dupont Circle area of the District of Columbia for seven months during which he saw marihuana purchased “hundreds of times” and participated “in hundreds of arrests in which I have seen marihuana both in loose form and in brick form”; he described a brick of marihuana as “approximately the size of a regular household brick,” and said it was “usually wrapped in white paper.” The evidence showed that the bag seized from appellant’s car contained five bricks of marihuana, the one on top, at least, being wrapped in white paper. Ordinarily, where an arrest is initiated on hearsay information received from an informer, the State to establish its legality where challenged should sufficiently inform the trial judge of some of the underlying circumstances from which the informer concluded that a crime ⁴³⁰ 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 informer.was credible or his information reliable. See Spinelli v. United States, 393 U. S. 410 ; Mullaney v. State, 5 Md. App. 248 .

That the State did not, at the trial, establish the .reliability of Stutman’s informer is entirely clear; 2 that his reliability cannot be established solely by reason of the fact that his information proved accurate is equally clear. See Bolesta v. State, 9 Md. App. 408 . Had the officers arrested appellant as he emerged from Gatlin’s apartment carrying the brown paper bag solely on the basis of the informer’s tip, coupled with their own then limited observations, the arrest would not have been lawful. But we think that under the circumstances of this case Agent Stutman had probable cause to believe that appellant was carrying marihuana in his vehicle when, without either a trespass or a search, he observed the bag in plain view on the seat of the car, its contents sufficiently' exposed to permit him, based on his experience and training, to conclude that what he saw was probably a brick of marihuana in its customary white wrapping.

We held in Taylor v. State, 9 Md. App. 402 , that the expertise of the officer in narcotics cases may be an important' factor in assessing the existence of probable cause. Where then, as here — the expertise of Agent Stutman being so clearly shown by the evidence — he testified, with specificity, with respect to his reason for concluding that the bag con ⁴³¹ tained marihuana, we think a sufficient evidentiary foundation was provided to enable the trial judge to intelligently assess whether Stutman’s belief had a factual basis amounting to probable cause in the constitutional sense. Cf. Taylor v. State, supra.

That appellant attempted, prior to his arrest, to flee the scene when accosted by the officers undoubtedly did much in Stutman’s mind to fortify the validity of his conclusion. In any event, we hold the seizure of the marihuana lawful either as the incident of a valid arrest based on probable cause to believe that appellant was committing a felony (see Simms v. State, 4 Md. App. 160 ), or on the ground that the seizure was justified because there was probable cause to believe that the vehicle harbored contraband, fruits, instrumentalities, or evidences of a crime (see Johnson v. State, 8 Md. App. 28). See also Draper v. United States, 358 U. S. 307 ; Owings v. State, 8 Md. App. 572 ; Price v. State, 7 Md. App. 131 . Appellant next contends that his conviction for unlawful possession of marihuana must be reversed because the law under which he was convicted was repealed during the pendency of his appeal by Ch. 237 of the Acts of 1970 —an emergency bill which took effect on April 15, 1970.

That Act repealed and reenacted, with amendments, Section 300 of Article 27 of the Code — the penalty section of the Maryland Uniform Narcotic Drug Act under which appellant’s sentence was imposed. Specifically, Chapter 237 amended Section 300 (a) by excluding from inclusion therein as a felony, and from the penalties thereby provided for violations of Sections 277, 8 291, 3 4 and 295, 5 violations of such sections involving “the product generally known as marihuana”; it then provides in new subsection (b) that any person who violates the provisions of Section 277 “with regard to the possession or use” of ⁴³² marihuana shall be guilty of a misdemeanor, the sentence for which shall not exceed, for the first offense, imprisonment for one year or a $1,000 fine, or both; 6 new subsection (b) further provides that for a second offense — or for a first offense where the offender was previously convicted of violating the laws of the United States or another State, or District “relating to the possession, use or sale of narcotic drugs or marihuana,” — the sentence shall be twice that authorized for a first offense; the subsection provides more severe penalties for subsequent offenses. New subsection (c) of Chapter 237 provides that, any person who violates the provisions of Section 277 “with regard to the sale, dispensing, giving away, or otherwise disposing” of marihuana shall be guilty of a felony, the penalty for which — depending upon whether it is a first or subsequent offense — ranges from imprisonment for not more than five years and a $15,000 fine or both to ten years and a $30,000 fine, or both. Section 2 of Chapter 237 specifies that “the provisions of this Act shall apply to any proceedings not finally adjudicated on the effective date of the Act.” We think it clear that nothing in Chapter 237 compels reversal of appellant’s conviction.

It is settled law in Maryland “that the repeal of a statute creating a criminal offense after conviction under the statute but before final judgment, including the final judgment of the highest court empowered to review the conviction, requires reversal of the judgment, because the decision must accord with the law as it is at the time of final judgment.” Bell v. State, 236 Md. 356, 363 , citing Keller v. State,