State v. Sedacca

Barnes, J., delivered the opinion of the Court. The appellee, Morris Sedacca, was convicted in the Circuit Court for Harford County (Dyer, J.), without a jury, of transportation and possession of untaxed cigarettes in violation of Code (1957), Article 81, Section 455. Sedacca raised three defenses in the trial court, i.e., (1) that the statute was unconstitutional on its face, (2) that the statute was unconstitutional as applied to him in the pending case, and (3) that the search and seizure of the cigarettes on November 12, 1965 was an unreasonable and unconstitutional search and seizure so that the cigarettes as evidence against him should have been suppressed by the trial court for this reason. Judge Dyer, after taking substantial testimony and hearing the arguments of counsel for the accused and for the State, rendered a comprehensive and careful written opinion in which he resolved all of the three issues against Sedacca, so far as the violation of Section 455 was concerned, but rendered a verdict of not guilty for alleged violations of Sections 438 and 463 of-Article 81.

The trial court, on June 7, 1966, sentenced Sedacca-to .imprisonment for one year ²⁰⁹ in the Maryland House of Correction and to pay a fine of $500, but suspended the jail sentence upon Sedacca’s good behavior and without supervision by the Maryland Department of Parole and Probation upon condition that the fine be paid within the week of sentence. Sedacca paid the fine together with $36 court costs to the Clerk of the Circuit Court for Harford County and the trial court, upon Sedacca’s petition, ordered the clerk to deposit the $500 fine in a special account until the final decision of the case by this Court. On appeal to the Court of Special Appeals, the judgment of the trial court was reversed. The Court of Special Appeals was of the opinion that the search and seizure was unlawful and found it unnecessary to consider the two constitutional issues raised by Sedacca in regard to the statute, itself.

We granted certiorari on March 12, 1968. As we disagree with the conclusion of the Court of Special Appeals in regard to the validity of the search and seizure in this case, it becomes necessary for us to consider the constitutional issues raised by Sedacca in regard to the statute and decided in the trial court. We will consider them in the order indicated and finally will consider the issue in regard to the validity of the search and seizure. Sedacca, a New York policeman, on the morning of November 12, 1965 purchased 858 cartons of cigarettes in North Carolina.

He received from the seller a slip of paper having on it the date with the name of a service station, but with the name of the purchaser left blank, which indicated the following: “liy2 case King $ 1,290.30 1J4 "25 Car. Reef 216.45 Paid $ 1,500.75 (with the signature of the seller) 53 Car. King 99.11 $ 1,599.86 $ 1,500.75” On the back of the paper appears : “13 x 60 780 78 858” ²¹⁰ Sedacca placed some of the cartons of cigarettes on the rear floor of his two-door 1964 Plymouth sedan, registered in his name in New York State, and the remaining cigarettes in the trunk of his car. The cigarettes on the rear floor of the car were between eight and twelve inches below the level of the windows.

He covered the top of the pile of cigarette cartons in the rear of his car with a green chenille double bedspread, on top of which he placed a sweater. He hung his overcoat on a window peg. He testified that the bedspread completely covered the cigarettes— top, sides, front and back. He then started back to New York.

He stopped in Maryland at the Maryland House service area on the John F. Kennedy Memorial Highway, Interstate Route No. 95, at about 8:45 a.m. He first stopped at the Texaco Service Station, which is located to the south of the Maryland House itself, where he had his automobile serviced and filled with gasoline. Approximately ten minutes later, he proceeded to the adjoining parking lot, parked his car, and after checking the chenille bedspread to see that it completely covered the cigarettes in the rear seat area, he locked his automobile and entered the Maryland House to use the rest room and get a cup of coffee. Two state troopers, Trooper Landbeck and Trooper Shockley, had received information over their radios describing a particular automobile, northbound, which was possibly transporting untaxed cigarettes.

The troopers observed an automobile on the parking lot at the Maryland House fitting the description they had received by radio and they also observed that the rear of this vehicle appeared to be heavily loaded. When Sedacca returned from the Maryland House to his automobile, the troopers decided that they would observe the car for any possible traffic violation. Sedacca, according to the troopers, proceeded from his parked position and ran through a stop sign in the service area. Sedacca denied that he failed to stop' as required by the stop sign but this factual issue was resolved against Sedacca by the trial court.

Sedacca was immediately pursued by the troopers and was stopped approximately one-eighth of a mile on the highway by Trooper Land-beck, who stopped his unmarked Maryland State Police car about five or six feet behind Sedacca’s automobile. Trooper Landbeck got out of his automobile, and he and Sedacca met ²¹¹ near the rear of Sedacca’s car. Sedacca inquired why he had been stopped and Trooper Landbeck told him that he had failed to stop for a stop sign upon leaving the parking lot. Sedacca testified that he stated: “I had stopped for the sign, but if he thought I didn’t, well, I’m sorry, I apologize.” Trooper Land-beck then asked for Sedacca’s driver’s license and registration card, which were produced, and asked what was Sedacca’s occupation.

Sedacca stated that he was a New York City police officer and asked if Trooper Landbeck “could grant me some consideration in view of the fact that I didn’t believe I went through the stop sign, I believed I stopped, plus the fact that we were both policemen.” Sedacca testified that Trooper Land-beck made no reply; Trooper Landbeck testified he stated: “I told him flat, no, I could not do that.” Trooper Shockley then arrived and told Sedacca that he and Trooper Landbeck had seen him “run a stop sign.” When asked by Trooper Shockley where he was coming from, Sedacca stated “Florida,” although this was not correct. Sedacca stated that he did this because “I didn’t want Corporal Shockley to become overly suspicious of what I was carrying.” The troopers decided to check the serial number of the Plymouth against the registration card. Here again the testimony is conflicting, Trooper Landbeck stating that he asked Sedacca if he would mind if Landbeck checked the serial number and if he (Sedacca) would open the door. Trooper Landbeck stated further that Sedacca, himself, opened the door, but Sedacca denies this, stating that Trooper Land-beck opened the door.

Trooper Shockley could not remember who opened the door and the trial court merely found that “the door was opened,” but did not find by whom it was opened. In any event, the door was opened and Trooper Landbeck either squatted down on his toes or knelt down to observe the serial number which did match the serial number appearing on the registration card. It was necessary to get close to the serial number which appeared on the door post some 18 inches from the ground in order to see it. While in the squatting or kneeling position, Trooper Landbeck glanced at the material stored in the rear seat area and observed that the spread had slipped away from the bottom of the pile exposing an area approximately 10 inches by 10 inches of a cardboard carton on which ²¹² the word “Kool” was visible.

Upon questioning, Sedacca admitted that he was carrying untaxed cigarettes (although Sedacca stated he “avoided an answer.”) and he was then told that he was also charged with transporting untaxed cigarettes. Agents of the cigarette tax unit were notified and when they arrived at the scene some 30 to 45 minutes later. Sedacca told them that he was transporting untaxed cigarettes, that he did not have an invoice, and that he had additional cigarettes in the trunk of his automobile. Sedacca was taken to the office of the Sheriff of Harford County, an agent of the Comptroller’s office swore to and obtained a warrant for Sedacca’s arrest for violation of the three provisions of Article 81 already mentioned and the cigarettes were transferred from the Plymouth to the automobile of the agents.

In regard to the traffic violation, Sedacca posted $13 as collateral which he later forfeited. The troopers conceded that they followed Sedacca’s automobile to see whether or not there would be any violations of the traffic laws and also to see, if possible, what the contents of the rear portion of the car might be. The trial court found that “The Trooper who did the checking admitted to the additional motive that the opening of the car door might reveal the contents in the rear.” (1) Sedacca contends that the provisions of Section 455 were too vague and indefinite to create a criminal offense of transporting untaxed cigarettes in interstate commerce without a proper invoice or delivery ticket, and therefore his conviction under such a vague and indefinite statute deprives him of due process of law as prohibited by Article 23, of the Declaration of Rights of the Maryland Constitution and the Fourteenth Amendment to the Constitution of the United States. We do not agree.

Section 455, which was in force on November 12, 1965, provided in relevant part as follows: . “Every person wlio shall transport cigarettes upon' which a tax is imposed by this subtitle, not stamped' as required by this subtitle upon the public highways, roáds or streets of this State shall have in his actual possession invoices or delivery tickets for such ciga ²¹³ rettes, which shall show the true name and address of the consignor or seller, the true name of the consignee or purchaser, the quantity and brands of the cigarettes so transported. If the cigarettes are consigned to or purchased by any person in Maryland such purchaser or consignee must be a person who is authorized by the State Tobacco Tax Act to possess unstamped cigarettes in this State. In the absence of such invoices or delivery tickets, or, if the name or address of the consignee or purchaser is falsified or if the purchaser or consignee in this State is not authorized to possess unstamped cigarettes, the cigarettes so transported shall he subject to confiscation. * * * “Transportation of cigarettes from a point outside this State to a point in some other state mil not be considered a violation of this section provided that the person so transporting such cigarettes has in his possession adequate invoices, bills of lading or delivery tickets which give the true name and true address of such out-of-State seller or consignor and such out-of-State purchaser or consignee.” (Emphasis supplied.) As originally enacted by the Acts of 1958, Chapter 1, Section 455 (then Section 438) did not contain the italicized portions of the section. The italicized portions were added by the Acts of 1963, Chapter 344.

By Section 431 (Section 414 of the original Act) there was “levied and imposed a tax to be paid and collected, as hereinafter provided, on all cigarettes used, possessed or held in the State of Maryland by any person for sale or use in the State of Maryland on or after July 1, 1957.” (Emphasis supplied.) Section 432 (Section 415 in the original Act) enumerated the exemptions among which is that the tax shall not apply “to sales or uses which are not within the taxing power of this State under the Constitution of the United States.” By Section 439 (Section 422 in the original Act), it is provided: “It shall be presumed that all cigarettes possessed or held in the State of Maryland after July 1, 1957 are subject to the tax herein levied and imposed un ²¹⁴ less and until the contrary is established, and the burden of proof that such cigarettes are not taxable hereunder shall be upon the possessor thereof.” (Emphasis supplied.) Then follow provisions for the affixing of stamps, various enforcement and licensing provisions, provisions in regard to-the making and maintenance of records, provisions in regard to investigation by the Comptroller or his authorized agent and then come the provisions in regard to the transportation of cigarettes of which Section 455 is one. It will thus be seen that Section 455 is an important provision for the enforcement of the cigarette tax and taken together with the presumption established by Section 439, it applied to all unstamped cigarettes transported on the State’s highways so that invoices or delivery tickets were required for all' unstamped cigarettes whether or not they might be ultimately determined to be subject to exemption under the statute. It is the failure of the transporter of unstamped cigarettes to have in his actual possession the invoices or delivery tickets with the required information which is the crime established by Section 455. The words “upon which a tax is imposed by this subtitle”' does not, in our opinion, make the criminal provision vague or indefinite because, as we have indicated, Section 439 presumptively imposes the tax on all cigarettes possessed or held in Maryland after July 1, 1957.

It is in this statutory setting that the Act of 1963, Chapter 344 was passed which added the italicized portions of Section 455 to which reference has already been made. It is clear to-us that the amendments of 1963 were intended to strengthen the. existing provisions of Section 455. The first two amendments strengthened the enforcement provision by an additional requirement that the Maryland consignee or purchaser must be a person authorized by the statute to possess unstamped cigarettes in Maryland. The third amendment strengthened the original statutory provision by indicating that the transportation of cigarettes from outside of Maryland to a point in some other state would not be considered a violation if the transporter had in his possession adequate invoices, bills of lading or ²¹⁵ delivery tickets which give the true name and true address of the out-of-state seller or consignor and the out-of-state purchaser or consignee.

In short, the legislative intent was not to weaken or eliminate the requirement that the interstate transporters have adequate and accurate invoices and delivery tickets but was to require in addition, that such transporters have such invoices, delivery tickets and bills of lading giving the names and addresses of the out-of-state sellers or consignors and purchasers and consignees. It is clear to us that a person of common intelligence construing the statute would be adequately informed that if he is transporting unstamped cigarettes through Maryland, he must have the required documents or be guilty of the misdemeanor provided in the statute. Such persons would not be required to’ guess at its meaning or differ in regard to its application. See Cramp v. Board of Public Instruction, 368 U. S. 278, 286-87 , 82 S. Ct. 275, 280-81 , 7 L.Ed.2d 285, 292 (1961).

Inasmuch as there is no doubt in regard to the scope of the statute, the question of a construction in favor of the taxpayer and against the State does not arise. See Comptroller of the Treasury v. M. E. Rockhill, Inc., 205 Md. 226, 234 , 107 A. 2d 93, 98 (1954). Sedacca contends that the title of the Eaws of 1963, Chapter 344 did not indicate a legislative intent to create a substantive crime for the tranporting of cigarettes in interstate commerce without the requisite documents. The title to the Act of 1963, Chapter 344 was as follows: “AN ACT to repeal and re-enact, with amendments, Sections 444y2, 453 and 455 of Article 81 of the Annotated Code of Maryland (1962 Supplement), title ‘Revenue and Taxes’, sub-title ‘State Tobacco Tax Act’, providing for the sealing of vending machines found in violation of the law and prescribing penalties for tampering with such seals, to make the provisions for assessments conform to the imposition of the tax and to make such assessments liens on the property of the taxpayer, and to provide that consignees of unstamped cigarettes in Maryland must be authorized ²¹⁶ to receive the same, AND RELATING GENERALLY TO THE SALE AND USE OF SUCH CIGARETTES.” As we have seen, however, the substantive crime was already in existence under the original provisions of the Acts of 1958.

Chapter 1 and the addition of the second paragraph was a strengthening provision, not the creation of a new substantive crime. The title to the Acts of 1963, Chapter 344 is entirely consistent with the legislative intent as we have set it forth. 1 In our opinion, the provisions of Section 455 are constitutional on their face. (2) Sedacca, however, contends that even if Section 455 is constitutional on its face, it is unconstitutional so far as he is concerned, inasmuch as the proof in this case establishes that the cigarettes were in interstate commerce and the State of Maryland cannot constitutionally require carriers of goods in interstate commerce to possess designated documents. Sedacca correctly points out that Article 1, Section 8, Clause 3 of the Constitution of the United States gives the power to the Congress to regulate interstate and foreign commerce and that this power is supreme and plenary.

It is a limitation upon the power of the States but the Supreme Court of the United States has never held that the States are without the power to impose any form of regulation of goods moving in interstate commerce. As Mr. Justice Frankfurter, for the Supreme Court, aptly stated in Freeman v. Hewit, 329 U. S. 249, 253 , 67 S. Ct. 274, 277 , 91 L. Ed. 265, 272 (1946) : “But, in the necessary accommodation between local ²¹⁷ needs and the overriding requirement of freedom for the national commerce, the incidence of a particular type of State action may throw the balance in support of the local need because interference with the national interest is remote or unsubstantial. A police regulation of local aspects of interstate commerce is a power often essential to a State in safeguarding vital local interests.” The police regulation in Section 455 requiring the possession of the prescribed documents by interstate transporters of cigarettes was necessary for the safeguarding of the State’s vital interest in preventing the diversion of cigarettes into illicit channels of trade in Maryland where the State would be unable to collect its tax. The police regulation is a reasonable one, is one with which honest and law abiding citizens can readily comply and is no impediment to the free flow of trade and commerce between the several States.

Indeed, the Supreme Court has sustained a State regulation upon interstate transportation which is far more stringent than that imposed by Section 455. In Carter v. Commonwealth of Virginia, 321 U. S. 131 , 64 S. Ct. 464 , 88 L. Ed. 605 (1944) the Supreme Court, independently of the Twenty-first Amendment, sustained an Act of the Commonwealth of Virginia which required a carrier transporting intoxicating liquor through the Commonwealth (1) to use the most direct route and have in its possession a bill of lading showing the route to be used; (2) post a bond in the penal sum of $1,000 conditioned upon lawful transportation through the Commonwealth; and (3) have in its possession a bill of lading showing the name of the true consignee and also