Robinson v. State

Orth, J., delivered the opinion of the Court. The appellant was found guilty of storehouse breaking with intent to steal goods of the value of $100 or more 1 and grand larceny by a jury in the Circuit Court for Prince George’s County. He was sentenced to imprisonment for a term of 5 years on each offense, the sentences to run concurrently. About noon on 4 July 1965 Officer Charles Ward of the Prince George’s County Police Department, on routine patrol, observed that a lock had been cut on a gate in the chain fence •enclosing an area in which a storehouse was situated.

He drove into the area and further observed that a door to the storehouse had been broken. He saw four men inside the storehouse. One of them called, “There’s the cops” and all four ran. Two of them, one of whom the officer identified as the appellant, ran out the door.

The officer chased them and they jumped the fence and escaped amid a fusillade of shots fired by the officer. He “put a lookout” for the four men, for breaking and entering, describing the clothes of the appellant and the other man who had jumped the fence. Officer Philip Donahue, of the Bladensburg Police Department, heard the lookout about 12:10 P.M. He saw the appellant and another man answering the descriptions given “coming out from the railroad tracks” about three-quarters of a mile from the storehouse. “I observed the defendant and then I saw ⁵¹⁹ that he was running, his pants were all raggedy and torn up and he matched the description that the lookout was put out for”. They came onto Kenilworth Avenue, “hitch-hiking”.

As the officer approached in his car, they entered a car which had stopped to give them a lift. Donahue ordered them out at pistol point and the appellant said to his companion, “Let’s get him. There’s only one of him”. The officer called for help on his car radio and about five minutes later Officer Donald DeSantis of the Prince George’s County Police Department arrived.

He searched them — “we always check them for weapons before they get in the car or anything of that nature” — and seized $205 from the person of the appellant. He took them back to the storehouse and turned the men and the money over to Sergeant Joseph Thornberry who was at the scene with other officers. Detective Sergeant Frank Bishop arrived and the appellant was again searched and an automobile registration card seized from him. “As a result of information on that registration card” Bishop went to a white 1962 Cadillac convertible that was parked outside the front gate of the storehouse fence and without opening the doors, looked inside, and saw a pair of bolt cutters on the rear floor. He searched the car and seized the bolt cutters.

They were identified by him at the trial. The automobile was taken to the police station lot in Seat Pleasant and photographed. At the trial two photographs were identified by the photographer and by Bishop as being photographs of the automobile from which the bolt cutters were recovered. The bolt cutters, although marked for identification, were never offered in evidence.

The photographs were received in evidence while Bishop was on the stand. The evidence as above summarized was received in the presence of the jury. The appellant objected to testimony with regard to the Cadillac and the photographs of it when the photographer was testifying, when Officer Ward was testifying, when Officer Bishop was testifying and objected to the photographs being received in evidence. He moved for a mistrial when the bolt cutters were displayed and identified and later moved for a mistrial regarding the evidence concerning the Cadillac “because just to move to strike all the testimony about this Cadillac from the trial, there has been too much in it and the pictures ⁵²⁰ have been admitted in evidence and it is highly prejudicial”.

He moved to strike all testimony with regard to the bolt cutters. The answer of the State to that motion was that the bolt cutters were not going to be introduced in evidence. The bases of his objections and motions were that his arrest was illegal and that the search of his person and automobile and the seizure of evidence as a result thereof were unlawful. The objections were overruled and the motions denied.

At the conclusion of evidence offered by the State the trial court said to the jury, “Members of the jury, anything you see lying around on the table introduced for identification purposes, unless it has been offered in evidence and admitted in evidence you are not to consider it”. It denied a motion for judgment of acquittal on all counts. 2 At the conclusion of all the evidence the appellant moved “to strike from the evidence and the record'the items seized as a result of the arrest, and that is the wallet and its contents, the registration card, the subsequent seizure of the Cadillac, the pictures of the Cadillac and the pictures that have been placed in evidence, and in addition the $205. All references within the record concerning these matters should be struck and we base our motion on the fact of the illegal arrest”. The court then granted the motion to quash all the evidence as to the bolt cutters, the car and the pictures of it and the cash.

It denied a motion for judgment of acquittal as to the storehouse breaking and larceny and granted the motion as to receiving stolen goods. In its charge to the jury the court said: “Now, there is certain evidence that was admitted during the course of the trial that was also stricken by virtue of the motions because the Court determined that the search, original search, was an illegal search and all the fruits that flowed from that illegal search are inadmissible. Therefore, you will strike from your minds all the exhibits that were admitted except — may I have them, Mr. Clerk? — the picture of the broken glass on the door, the picture of the inside of the warehouse showing the safe and the other pictures showing the safe with the pipe here sitting on top of it. You ⁵²¹ may properly consider that along with the two plats that were drawn by the witnesses.

And you may likewise consider all the testimony that has not been excluded other than the fruits of the search, you may not consider that. The snippers (bolt cutters) and the pictures of the automobile and the possession on the defendant of the sum of money, you may not consider that because that flowed from the fruits of an illegal search”. Maryland Rule 729, effective 1 September 1967, provides for the filing of a motion for the suppression, exclusion or return of property seized which may be used as evidence at trial on the ground that it was obtained by an unlawful search or seizure. Section b, subsection 1.

But the rule does not require a pre-trial motion and the failure to file such motion before trial “shall not constitute a waiver of a defendant’s right to object at the trial to the introduction of such evidence”. Section c. When such motion is filed at least five days prior to the trial date, or if a petition is transferred to the court of criminal trial jurisdiction as provided by the rule, the trial shall not commence until the matter is determined by the court. Section d, subsection 1.

In all other cases the court shall have discretion to determine the motion as a preliminary matter or during trial. “If the case is being tried before a jury the hearing on the motion, or on objection to the introduction of evidence alleged to have been obtained by an unlawful search and seizure, shall he out of the presence of the jury”. Section d, subsection 2. The rule was not effective at the time of the appellant’s trial, but the substance of it was the preferred procedure prior to its adoption. It was established before the rule was adopted that the determination of the admissibility of evidence which is dependent upon the lawfulness of an arrest should be made by the trial judge as a preliminary matter quite apart from the question of the guilt or innocence of the accused. “If the case is being tried before a jury, such a matter should be heard out of the presence of the jury”.

Farrow v. State, 233 Md. 526, 533 . Nor was it essential prior to the effective date of the rule, that a motion to suppress the evidence be made prior to triaL ⁵²² A motion to suppress the evidence and objection to its introduction at trial preserved a defendant’s basic constitutional right. Shrout v. State, 238 Md. 170, 174 . In the instant case we think the trial court erred in not determining the matter of the admissibility of the challenged evidence out of the presence of the jury.

The question is whether in the facts and circumstances the error was so prejudicial as to require reversal of the judgments. THE ARREST The law of arrest in Maryland has not been codified but is the “spawn of judicial and social thought, to many * * * long been considered mature in its present state”. The Law of Arrest in Maryland by David Kauffman, 5 Md. L. Rev. 125 , 171 (1941). Mr. Kauffman points out: “To those more keenly cognizant of the change in the requirements of an administration of criminal justice, the doctrine is not only mature, it is over-ripe”.

The probative force of this observation is enhanced by the felony-misdemeanor distinction in this State, for this distinction plays a large part in the determination of whether an arrest made without a warrant is valid or invalid, Shelton v. State, 3 Md. App. 394 ; Boone v. State, 2 Md. App. 479, and, in turn, the validity of the arrest determines whether a search incident thereto is reasonable as to make evidence seized thereby admissible, McRae v. State, 3 Md. App. 388 . The general rule is that a warrantless arrest by a police officer is valid where he has probable cause to believe at the time of the arrest that a felony has been committed and that the person arrested has committed it. Duckett v. State, 3 Md. App. 563, 572 . But when the offense is a misdemeanor, the general rule is that a warrantless arrest by a police officer is valid where he has probable cause to believe that a misdemeanor has been or is being committed in his presence or view and that the arrestee is the misdemeanant.

Thompson v. State, 4 Md. App. 31, 37; Salmon v. State, 2 Md. App. 513, 522. See McCarthy v. State, 2 Md. App. 400. Under the common law felonies denote offenses “as are of a deeper and more atrocious dye; while smaller faults, and omissions of less consequence, are comprised under the gentler ⁵²³ name of ‘misdemeanors’ only”. 3 4 Blackstone, Commentaries 5. In Maryland only those crimes are felonies “which were such at common law, or have been so declared by statute”.

Bowser v. State, 136 Md. 342, 345 ; Dutton v. State, 123 Md. 373, 378 . It is clear that the common law differentiation between felonies and misdemeanors is not practical in application today. Nor can the Maryland system of differentiation be logically supported. 4 In many instances there is no correlation between the designation of the offense as a felony or misdemeanor and the seriousness of the crime or the severity of the punishment permitted. This has been recognized to some extent by the legislative designation of some crimes as felonies which were theretofore misdemeanors. 5 And the felony-misdemeanor differentiation is no longer material with respect to the admissibility of evidence.

Since Mapp v. Ohio, 367 U. S. 643 (1961) illegally seized evidence is not admissible, be the prosecution for a felony or a misdemeanor. 6 State v. Jacobs, 242 Md. 538 . But the differentiation is still relevant to the determination of the validity of an arrest and peace officers in Maryland frequently find themselves under a handicap due to the unusual distinctions between felonies and misdemeanors. Eight years ago, in Oden v. State, 222 Md. 325, 329, the Court of Appeals referred to the problems pointed out inter alia in the Kauffman article, and noting that they still persisted, stated that they could be dealt with by legislative, but not by judicial action. The Court found the problems to be still existent in 1965, Goad v. State, ⁵²⁴ 239 Md. 345, 347 , and the instant case clearly shows that they exist today.

As more sophisticated means of communication became available to peace officers the general rule as to arrest for felonies was applied with reference to information received by the arresting officer over the police radio network. In Mulcahy v. State, 221 Md. 413 , stating at p. 421, that, “[i]n 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”, the Court said, p. 422, that it is “wholly immaterial whether the suspicion arises out of information imparted to the officer by someone else, or whether it is founded on his own knowledge”. In later cases both the Court of Appeals and this Court have held that a report of a felony and a description of the perpetrators broadcast over a police radio may furnish probable cause for an arrest. 7 But we do not think that it is a necessary conclusion from the language of opinions dealing with the matter that the arresting officer must himself have probable cause for the arrest, where another member of the police team has probable cause and the arresting officer has been alerted to make the arrest over the police radio. 8 We think that Farrow v. State, 233 Md. 526 and Lamot v. State, 2 Md. App. 378 are significant. In Farrow , a police officer in Baltimore City had probable cause to believe that the defendant had committed a rape and broadcast a description of the defendant and his automobile and that he was wanted by the Baltimore City police for rape and other crimes.

The defendant was arrested by Anne Arundel County police officers. The Court said, pages 531-532: “The officers in Anne Arundel County who made the arrest knew nothing about the probable cause but they ⁵²⁵ had received a look out’ for the defendant from a responsible source and we think that is sufficient. If the police team working on the particular case had accumulated sufficient information to furnish probable cause for a reasonable man to believe that the alleged crime had been committed and that there was probable cause to believe that the defendant was involved therein, there was sufficient cause for his arrest”. In Lamot we said, p. 384, citing Farrow : “If the police officers, working as a team, had accumulated sufficient information to furnish probable cause for a reasonable man to believe that the alleged crime (a felony) had been committed and that there was probable cause to believe that the appellants were involved therein, there was sufficient cause for their arrest”.

At common law an arrest without a warrant could be made by a peace officer for a misdemeanor only if it amounted to a breach of the peace committed in his presence. 4 Blackstone, Commentaries 292; 10 Halsbury’s, Laws of England, 342-345, 3rd Ed. (1955); Rex v. Bright, 4 C. and P. 387 (1830). But he could not arrest for a past breach of the peace where the threat of a continuing or further breach of the peace in the immediate future was not existent. 2 Hale, Pleas of the Crown, 90. 9 A warrant was required to arrest for past misdemeanors. 4 Blackstone, Commentaries 289-296. Although the courts in some states still limit the right to arrest without a warrant for misdemeanors to those amounting to a breach of the peace ⁵²⁶ committed in the presence of the arresting officer, Radloff v. National Food Stores, Inc., 20 Wis. 2d 224, 121 N. W. 2d 865 (1963), most states follow the general rule and permit the arrest to be made for any misdemeanor committed or being committed in the presence or view of the arresting officer. Some states have done so by statute. 10 Maryland, among others, has done so by judicial decision.

The first Maryland cases dealing with the matter came in the wake of the change of police au thority in Baltimore City from the City to the State. See Lewis, The Baltimore Police Case of 1860, 26 Md. L. Rev. 215 (1966). Both Mitchell v. Lemon, 34 Md. 176 and Roddy v. Finnegan, 43 Md. 490 , dealing with arrests in Baltimore City by police officers stated that an officer can arrest without a warrant for a misdemeanor committed in his presence. By 1895 when B. & O. R. R. v. Cain, 81 Md. 87 was decided the rule was firmly established, although the cases therein relied on, Phillips v. Trull, 11 Johns 486 (N.Y. 1814) and Derecourt v. Corbishley, 5 E. & B. 188 (Eng. 1855), were cases authorizing arrest for a breach of the peace in the officer’s presence.

In any event the rule has been consistently followed in this State. 11 ⁵²⁷ In the instant case Officer Ward observed the cut lock on the gate in the fence, the broken door of the storehouse, the appellant on the premises and the flight of the appellant at the appearance of the police. These facts and circumstances within the officer’s knowledge were sufficient in themselves to warrant a man of reasonable caution in the belief that the misdemeanor of breaking the storehouse had been committed or was being committed in his presence and view and that the appellant was the misdemeanant. But Ward was not the arresting officer. The appellant was arrested by Officer Donahue who heard the police broadcast of a “lookout” for the four men seen by Ward, for breaking and entering, and describing the appellant. 12 The question is whether a police officer may arrest for a misdemeanor committed in the presence of another police officer upon receipt of information that the misdemeanor has been committed and of a description of the misdemeanant. 13 In Silverstein v. State, 176 Md. 533 a detail of police officers in plain clothes was sent to investigate if the law against gambling was being violated on the premises of the defendant.

One of the officers, ⁵²⁸ without trespassing, entered the premises and what he observed was sufficient probable cause for him to believe that the misdemeanor was being committed in his presence by the defendant. The