Stevenson v. State

Digges, J., delivered the opinion of the Court. Petitioners Robert Louis Stevenson, Jr. and Kent Alton Wilson were convicted by a jury in the Circuit Court for Prince George’s County of two counts of robbery with a deadly weapon and one count of using a handgun in the commission of a crime of violence. When on appeal the intermediate appellate court affirmed these convictions, this Court granted certiorari to review the following questions: (1) Whether the Court of Special Appeals erred in holding that "a citizen’s arrest” (in this case, police ⁵⁰⁶ officers acting outside of their territorial jurisdiction) were beyond the scope of constitutional protection? (2) Whether the trial court erred in holding that the warrantless arrests of Stevenson and Wilson by private individuals were valid, and thus, that the fruits of these arrests were properly admitted into evidence?

Since we conclude that "citizens’ arrests” remain viable in this State, and because we determine that the apprehension of petitioners here was validly effectuated in accord with longstanding common law principles for such arrests, we will affirm their convictions. By so ruling, we do not reach the constitutional issue posed. The factual backdrop • to this appeal begins with the daytime robbery, on April 4, 1978, of a branch of the First National Bank of Southern Maryland, located in the Marlow Heights Shopping Center in Prince George’s County. Several males, some of whom were armed, entered the bank, seized all of the money .contained in two of the tellers’ cash drawers and immediately left on foot.

At this same time, three members of the Washington, D.C. Metropolitan Police Department — Detectives Franklin, Bartholomew and Wallace — happened to be in the vicinity of the bank on totally unrelated business. As they approached the shopping center in an unmarked police car, Officer Franklin, who was familiar with the Marlow Heights area of southern Prince George’s County, observed two men, approximately forty or fifty yards from the rear of the bank, running away from the building "as fast as they could.” Specifically, the detective noticed a cloud of paint or red smoke. Two men were in the cloud running. One of them had what appeared to be a bag in his hand that the smoke appeared to be coming from, and there were bits of paper flying through the air, coming out of the bag.

Being "familiar with the practice of banks using a [robbery prevention and detection] device that contains tear ⁵⁰⁷ gas and dye that they include among [the] money ..., that explodes shortly after ... it is removed from a [teller’s] drawer,” and seeing no apparent reason for the two men’s flight as no one was chasing them, Franklin remarked to his companions that "there must be a bank robbery and those two possibly were part of it.” The officers immediately made a U-turn, pulled their automobile abreast of the runners, verbally identified themselves as police officers (they did not display their badges nor were they in uniform) and directed the fleeing suspects to halt. When these two individuals failed to stop, Detectives Franklin and Bartholomew jumped from the car and gave chase. The runners separated, and one of them, later identified as petitioner Wilson, was almost immediately apprehended by Detective Franklin, with some assistance from Detective Bartholomew. Seeing that his colleague had subdued Wilson, Officer Bartholomew pursued the second suspect.

As this detective started up the street in the direction of the man’s flight, he saw someone, "[approximately a block or half a block” from where he had last seen Wilson and his companion before they had separated, who "broke and ran across the street.” Officer Bartholomew believed this person was one of the two men he had seen running earlier, since his height (6'1" or 6'2") was about the same, 1 although the officer acknowledged having taken his eyes off of the runner for "a few seconds” while he helped corner Wilson. The detective also testified that he recalled seeing no one else on the street at the time he gave chase to this individual. Officer Bartholomew pursued this suspect around the corner of an office building, but he was nowhere to be seen; a search of the parking lot behind the building was then immediately undertaken by the detective since he "knew that [the runner] couldn’t have disappeared that fast.” When this search failed, Officer Bartholomew questioned "some ⁵⁰⁸ unknown citizens” (who were, at the same time, eating at an outdoor cafe next to the parking lot) as to whether they had seen anyone running. One or more of these diners responded, "Yes, he is in the bushes up there by that car.” Upon examining the bushes indicated, the officer found the suspect whom he had chased around the building lying prone on the ground camouflaged beneath the foliage.

This man, later identified as petitioner Stevenson, was ordered out of the bushes and turned over to a Prince George’s County police officer who, in response to the robbery alarm, had arrived on the scene. Stevenson, as well as Wilson, were subsequently indicted by the grand jury for robbery with a deadly weapon and related offenses. At their jury trial in the Circuit Court for Prince George’s County, both Stevenson and Wilson, each claiming that his arrest by the District of Columbia officers was illegal, moved to suppress all evidence concerning the arrest, including any in-court identification of him by Detectives Franklin and Bartholomew. A hearing was conducted on these motions, at which the events surrounding the arrests, earlier described, were related.

The trial court, relying on this Court’s decision in Great Atl. & Pac. Tea Co. v. Paul, 256 Md. 643 , 261 A.2d 731 (1970), denied the petitioners’ motions to suppress because, in its view, the Washington officers, acting as private individuals, had the necessary probable cause to authorize a citizen’s arrest. On appeal to the Court of Special Appeals, petitioners made no constitutional attack concerning their arrest, but challenged their capture solely on the grounds that, under our decision in Paul , a private individual may arrest another only if he possessed actual knowledge that a felony had been committed and not, as the trial court held, probable cause to believe that such criminal conduct had taken place.. The intermediate appellate court, however, at the suggestion of the State, found it unnecessary to address the limited issue raised by the petitioners both before it and the trial court, since, in its view, citizens’ arrests are not governed by the federal constitution’s fourth amendment stricture against unreasonable searches and seizures.

Consequently, that court affirmed the convictions ⁵⁰⁹ because, under this ruling, the exclusionary command of Wong Sun v. United States, 371 U.S. 471 , 83 S. Ct. 407 , 9 L. Ed. 2d 441 (1963) as a sanction for unconstitutional seizures, would not apply to the evidence obtained during the arrests of petitioners even if such detentions were illegally made. Stevenson v. State, 43 Md. App. 120, 124 , 403 A.2d 812, 815 (1979). Because we conclude that these arrests made by the citizens here were valid under the nonconstitutional law of this State, whose requirements are at least as strict as those of the United States Constitution, there is no reason to consider the impact of the fourth amendment’s exclusionary rule on arrests by private individuals. 2 In explaining why we believe the apprehension of both Stevenson and Wilson by the District of Columbia detectives was valid, we begin by examining the status of these officers when they acted in this case. Generally, a peace officer’s authority to make an arrest is limited, in the absence of statutory authority expanding it, to the confines of the geographical unit of which he is an officer.

See Gattus v. State, 204 Md. 589, 597-600 , 105 A.2d 661, 664-66 (1954); accord, State v. Shienle, 218 Kan. 637 , 545 P.2d 1129, 1132 (1976); Berigan v. State, 2 Md. App. 666, 668-69 , 236 A.2d 743, 744 (1968); State v. Williams, 136 N.J. Super. 544 , 347 A.2d 33 , 35 (1975); Irwin v. State, Department of Motor Vehicles, 10 Wash. App. 369 , 517 P.2d 619, 621 (1974); 4 Wharton’s Criminal Law and Procedure § 1614, at 277 (R. Anderson ed. 1957). At common law, a limited exception to this rule developed which permits an officer who is in "fresh pursuit” of a suspected felon to make a legally binding arrest in a territorial jurisdiction other than the one in which he has been appointed to act, Gattus v. State, supra, 204 Md. at 600-01 , 105 A.2d at 666 , and this ancient doctrine has, to some extent, been codified in this State. Md. Code (1957, 1976 Repl.

Vol., 1979 Cum. Supp.), Art. 27, §§ 595-602 (interstate fresh pursuit); §§ 602A-602AD (intrastate fresh ⁵¹⁰ pursuit). See Boddie and Brooks v. State, 6 Md. App. 523, 531 , 252 A.2d 290, 293-94 , cert. denied, 255 Md. 739 (1969). In all other situations, however, a peace officer who makes an arrest while in another jurisdiction does so as a private person, and may only act beyond his bailiwick to the extent that the law of the place of arrest authorizes such individuals to do so.

E.g., Davis v. United States, 409 F.2d 1095, 1099 (5th Cir. 1969); State v. McCullar, 110 Ariz. 427 , 520 P.2d 299, 300 (1974); People v. Lyons, 18 Cal. App. 3d 760 , 96 Cal. Rptr. 76, 85 (1971); State v. Shipman, 370 So. 2d 1195, 1196 (Fla. App. 1979); State v. O’Kelly, 211 N.W.2d 589, 595 (Iowa 1973), cert. denied, 417 U.S. 936 (1974); State v. MacDonald, 260 N.W.2d 626, 627 (S.D. 1977); Restatement (Second) of Torts § 121, comment a (1965).

In the present case, since Officers Franklin and Bartholomew were not in "fresh pursuit” of the petitioners at the time they arrested them in Prince George’s County but were in the county on other business, they no longer had authority to arrest as police officers. Consequently, their acts must be examined as those of private citizens for, as the Iowa Supreme Court said in a similar situation: "When the [Nebraska] officers came to Iowa, they ceased to be officers but they did not cease to be persons. 'An officer who seeks to make an arrest without warrant outside his territory must be treated as a private person.’ ” State v. O’Kelly, supra, 211 N.W.2d at 595 (quoting 5 Am. Jur. 2d, Arrest § 50, at 742). Although seemingly recognizing that police officers may not legally act in that capacity outside of the jurisdictional territory of their designating agency, petitioners, nonetheless, contend that such an officer is not necessarily to be viewed as other private citizens.

Relying principally on an opinion by a Florida intermediate appellate court panel, State v. Shipman, 370 So. 2d 1195 (Fla. App. 1979), Stevenson and Wilson argue that an extraterritorial arrest by a peace officer is not that of a private citizen if the officer was acting "under color of his office” at the time he made the arrest. See also, State v. Crum, 323 So. 2d 673 (Fla. App. 1975) (per curiam); Collins v. State, 143 So. 2d 700 (Fla.

App. 1962). Consequently, as the argument goes, since the ⁵¹¹ District of Columbia detectives identified themselves as police officers and used their service revolvers when apprehending petitioners, these arrests should not be viewed as those made by private individuals, although it is not entirely clear how petitioners would have us examine the validity of their arrests. Even if this Court were inclined to accept the legal principle announced by the Florida intermediate appellate court, we do not believe the activity challenged here would fall within it. A fair reading of these Florida precedents leads us to the conclusion that the phrase "color of his office” applies not to the modus operandi of the arrest, but to whether their official authority was used to gain access to the information which led to the belief that an arrest should be made.

Compare State v. Collins, supra (officer admitted to a room solely because of his status as a peace officer where he observed commission of crime is acting under "color of his office”) with State v. Shipman, supra (undercover agent who participates in narcotics transaction not acting under "color of his office” at time of arrest but as private citizen). Here, the Washington detectives did not see the cloud of red smoke or the flight of petitioners because of their status as officers; they merely observed what every private citizen, close enough to do so, could have perceived. Thus, we hold, as did both the trial court and Court of Special Appeals, that, under the circumstances present here, the District of Columbia police officers were functioning in a private rather than official capacity for the purpose of evaluating the legality of the arrests here. 3 Having decided that the Washington detectives were acting as private individuals at the time they arrested the petitioners, we now turn to a discussion of the scope of a private citizen’s legal authority to apprehend another for criminal activity, and whether that power was validly exercised in this case. Unlike many of our sister states, the law of arrest in Maryland is, for the most part, ⁵¹² governed by the common law rather than by statute. 4 See Kauffman, The Law of Arrest in Maryland, 5 Md. L. Rev. 125, 125-26 (1941).

Under the common law, as we inherited it from England (see Md. Decl. of Rts., Art. 5), both peace officers, as well as private individuals,-have the right to arrest those suspected of crime, with the extent of their authority depending upon the specific type of arrest made. See, e.g., M. Bassiouni, Citizen’s Arrest 9-13 (1977); 2 M. Hale, The History of the Pleas of the Crown 72-97 (1st Am. ed. 1847); 2 W. Hawkins, A Treatise of the Pleas of the Crown 114-29 (8th ed. 1824). See generally, Annot., 7 British Ruling Cases 679 (1918); Kauffman, supra. While the right of private individuals to arrest those suspected of criminal activity is one of longstanding in Anglo-American legal history, 5 this Court has, on only a few occasions, addressed this aspect of law enforcement in this State.

See Great Atl. & Pac. Tea Co. v. Paul, 256 Md. 643 , 261 A.2d 731 (1970); B. & O. R.R. Co. v. Cain, 81 Md. 87 , 31 A. 801 (1895). A decade ago, when we last examined this area of law, we tersely set ⁵¹³ forth the common law requirements for a valid citizen’s arrest: In Maryland a private person has authority to arrest without a warrant only when a) there is a felony being committed in his presence or when a felony has in fact been committed whether or not in his presence, and the arrester has reasonable ground (probable cause) to believe the person he arrests has committed it; or b) a misdemeanor is being committed in the presence or view of the arrester which amounts to a breach of the peace. Kauffman, The Law of Arrest in Maryland, 5 Md. L. Rev. 125 , 155 (1941); 49 Op.

Atty. Gen. 11 (1964). [Great Atl. & Pac. Tea Co. v. Paul, supra, at 655, 261 A.2d at 738-39 .] Accord, B. & O. R.R. Co. v. Cain, supra, at 102, 31 A. at 804 . Although minimal authority was cited in support of this standard, it does accurately portray the law on this subject which is generally accepted both in this country and in England since at least the late eighteenth century.

See, e.g., United States v. Coplon, 185 F.2d 629, 634 (2nd Cir. 1950); Davis v. United States, 16 App. D.C. 442, 454-55 (1900); Suell v. Derricott, 161 Ala. 259 , 49 So. 895, 901 (1909); Smith v. State, 258 Ind. 594 , 283 N.E.2d 365, 367 (1972); State v. Albright, 144 Mo. 638 , 46 S.W. 620, 621-22 (Mo. 1898); Brown v. State, 62 N.J. Law 666, 42 A. 811, 820 (1899); Holley v. Mix, 3 Wend. 350, 353-54 (N.Y. Sup. Ct. 1829); Brooks v. Commonwealth, 61 Pa. 352, 358-59 (1869); Walters v. Smith & Son, [1914] 1 K. B. 595, 674-75; Davis v. Russell, 5 Bing. 354, 363-64, 366 (C.P. 1829); Beckwith v. Philby, 9 Dowl. & Ry. 487, 490 (K.B. 1827); 2 M. Hale, supra, at 75-79; L. Hockheimer, A Manual of American Criminal Law § 120 (1911); A.L.I., Code of Criminal Procedure § 22, at 238-42 (1930); Perkins, The Law of Arrest, 25 Ia. L. Rev. 227, 233-40 (1940); Annot., Arrest by Private Person, 133 A.L.R. 608 , 613-19 (1941); Annot., Right of Private Person to Make or Cause Arrest without Warrant, 7 British Ruling Cases 679, 682-83 (1918). In the case we now consider, ⁵¹⁴ therefore, the question of primary importance is how the tenets of the private person (citizen) arrest rule expressed in Paul are to be interpreted and applied.

Given the undisputed premise that the crime for which Stevenson and Wilson were arrested (bank robbery) is a felony, their arrests are valid under the Paul test if either of two sets of conditions were present at the time of their capture: (1) The robbery for which the petitioners were arrested was being committed in the presence of their captors; or (2) that crime, although not occurring in the presence of Officers Franklin and Bartholomew, in fact happened, and reasonable grounds existed for the belief that the petitioners had committed the suspected offense. Not surprisingly, the parties disagree as to the impact of each of these legal requirements as they apply in the present case. With respect to the first possibility, it is petitioners’ contention that since the District of Columbia detectives did not view the robbery itself, i.é., the actual taking possession of the money, but merely observed, after the fact, circumstantial evidence of it having been committed, their apprehension cannot be upheld as complying with this aspect of Paul . The State answers, however, that since the crime was still in progress at the time the officers passed the shopping center, the felony was being committed in their presence and they had the right (and maybe even the duty, see 2 W. Blackstone, Commentaries * 292-93) to arrest the petitioners.

In support of this argument the Attorney General relies on the fact that if Wilson or Stevenson had shot and killed either of their arresters, they would have been, in his view, guilty of murder perpetrated in the commission of a felony (felony-murder), which must mean that the felonious act had not yet terminated at the time the Washington detectives came upon the scene. Cf. Veney v. State, 251 Md. 159, 174-75 , 246 A.2d 608, 617-18 (1968), cert. denied, 394 U.S. 948 (1969); Mumford v. State, 19 Md. App. 640, 643-44 , 313 A.2d 563, 566 (1974); Jeter v. State, 9 Md. App. 575, 579-80 , 267 A.2d 319, 321-22 (1970), aff'd, 261 Md. 221 , 274 A.2d 337 (1971). Considering the time and space proximity present in this case between the obtaining ⁵¹⁵ possession of the money and the observed flight of the suspects, we do not deem it a frivolous argument to suggest, as does the State here, that the commission of the crime was still in progress when observed by the detectives so as to be committed in their presence.

See Perkins, supra, 25 Ia. L. Rev. at 231-33. However, we find it unnecessary to explore this aspect of the common law of arrest because we believe the State is clearly correct in its interpretation of the second prong of the Paul rule — that all that is required, in the criminal context, to authorize a valid citizen’s arrest is reasonable grounds to believe (i) that a felony had been committed and (ii) that the petitioners were the responsible agents; not as the petitioners contend, that the officers have actual knowledge of its commission. In the present case, this aspect of the dispute centers around the language in Paul and other decisions requiring proof that "a felony has in fact been committed” in order to justify an arrest by a private individual.

Petitioners assert that this requires actual knowledge by the arresting party of the felony’s commission at the time he decides to arrest. See People v. Aldapa, 17 Cal. App. 3d 184 , 94 Cal. Rptr. 579 (1971).

But see Smith v. State, 258 Ind. 594 , 283 N.E. 2d 365, 367 (1972). The State, on the other hand, maintains that the "in fact been committed” aspect of the common law is only a condition for protecting the arrester from possible civil or criminal prosecution if he has made a mistake of fact with respect to the arrestee’s guilt. In explaining our agreement with the State’s position, we initially point out that what we have just said concerning the right of arrest by a private individual is similar to the well-settled common