Stevenson v. State

Couch, J., delivered the opinion of the Court. Appellants Robert Louis Stevenson, Jr., Edward Clifton Ingram, Kent Alton Wilson and Alfred Estes were each convicted following a jury trial in the Circuit Court for Prince George’s County (Melbourne, J.), of two counts of robbery with a dangerous and deadly weapon and one count of use of a handgun in a crime of violence. Each appellant was sentenced to a total of thirty years incarceration and each timely noted an appeal. The factual background for these appeals is this: The First National Bank of Southern Maryland, located in the Marlow Heights Shopping Center, was robbed on April 4, 1978.

Several males, some armed, entered the bank and took money from two bank tellers’ cash drawers. Appellants Stevenson, Ingram and Wilson were arrested in the vicinity of the shopping center shortly after the robbery. Appellant Estes surrendered himself to the police several days later. Further facts will be supplied as each question presented by appellants is discussed.

We are asked here to consider: “1. Did the trial judge err in denying motions to suppress evidence derived from the illegal arrests of Appellants Stevenson, Wilson and Ingram? ¹²² 2. Did the trial judge err in denying motions for judgments of acquittal made by Appellants Stevenson, Wilson and Ingram? 3. Did the trial judge err in denying motions for severance of defendants made by all Appellants? 4.

Did the trial judge err in imposing separate, consecutive sentences for armed robbery and use of a handgun in commission of a crime of violence, when such charges merged?” Inasmuch as certain of these issues apply only to some of the appellants, we shall discuss the non-common issues separately as to individual appellants. Those issues that are common to all appellants shall be considered together. 1 Did the trial judge err in denying motions to suppress evidence derived from the illegal arrests of appellants: (a) Stevenson and Wilson The record shows that at the time of the robbery three Washington, D. C. police detectives, in plain clothes, were riding in an unmarked car near the Prince George’s County shopping center where the bank was located. One of the detectives, Officer Franklin, testified that he saw two men emerge running from a cloud of red smoke or dye, about 40 to 50 yards from the rear of the bank. One of the men had what seemed to be a bag in his hand from which apparently emanated smoke and bits of paper.

The detective testified that he was familiar with the use by banks of a device, disguised as a packet of bills, which contains tear gas and dye. This device explodes shortly after it is removed from a drawer in the bank. He remarked to his two companions, “There must be a bank robbery and those two are possibly part of it.” They pursued the two men by car and, after pulling abreast of the men, one of them identified himself as a police officer and ordered them to halt. One of the men turned and fled in the opposite direction.

The second man turned into a driveway and found himself blocked by a blank ¹²³ wall, where he was soon apprehended. This man was subsequently identified as appellant Wilson. The other man (Stevenson) was ultimately apprehended by D. C. Officer Bartholomew, who had been in the car with Officer Franklin. Bartholomew testified that he assisted Franklin in subduing Wilson, then saw the other subject run across the street and gave chase.

He said he believed this subject was one of the two men he had seen running earlier, since the height and clothing were similar. The officer lost sight of the man for five or ten minutes as he ran behind an office building. Bartholomew questioned bystanders as to whether they had seen anyone run through the area. They responded affirmatively and one person remarked, “He is in the bushes up there by that car.” Bartholomew searched the bushes and found Stevenson lying on the ground.

Stevenson was ordered out of the bushes and turned over to a Prince George’s County police officer. Stevenson and Wilson moved to suppress all evidence concerning the arrest, and any fruits derived therefrom, on the basis of an illegal arrest which produced poisonous fruit. The thrust of their argument is simply that their arrests were illegal because the Washington, D. C. police officers who arrested them did not have actual knowledge that a felony had been committed or probable cause to believe they had committed it. The State contends it was only necessary to show that the arrestors had probable cause to believe a felony had been committed and that the appellants committed it.

A close reading of appellants’ brief on this issue persuades us that they concede that the Washington, D. C. police officers were acting as private citizens 1 at the time of the ¹²⁴ arrests. Indeed, they conceded the point at oral argument. The trial court, in denying appellants’ motion to suppress, did so on the básis that a citizen’s arrest was being made and those making the arrests had probable cause to do so. This ruling was based upon Great Atlantic & Pacific Tea Co. v. Paul, 256 Md. 643 , 261 A. 2d 731 (1970) (a civil case), wherein the Court of Appeals stated: “In Maryland a private person has authority to arrest without a warrant only 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...” Id. at 655 .

We shall affirm the ruling of the trial court, but for a different reason. We find it unnecessary in resolving this issue to address the question of whether a private citizen, in making an arrest for a felony not committed in his presence, must have actual knowledge that the felony has been committed or may, as is the case with a police officer making an arrest under similar circumstances, make the arrest having only reasonable grounds to believe a felony has been committed. Great Atlantic & Pacific Tea Co. v. Paul, supra; People v. Aldapa, 17 C.A.3d 184, 94 Cal. Rptr. 579 (1971); 49 Opinions of Attorney General 11 (1964); 133 A.L.R. 603 ; Law of Arrest in Maryland, Kauffman, 5 Md. Law Review 125 (1941).

We base our holding on the conclusion that the motion to suppress was obviously founded on a claimed violation of appellants’ rights under the Federal Fourth Amendment’s prohibition against unreasonable searches and seizures, which would bring'into play the exclusionary rule laid down in Wong Sun v. U. S., 371 U. S. 471 , 83 S. Ct. 407 , 9 L.Ed.2d 441 (1963). Under the facts and circumstances of this case the exclusionary rule is inapplicable. In the past it has been held repeatedly that “[B]y history, judicial rule and application, the exclusionary rule as to evidence seized in violation of the Fourth Amendment comes into play only when the evidence is obtained by governmental action.” Herbert v. State, 10 Md. ¹²⁵ App. 279, 284, 269 A. 2d 430 (1970), cert. den., 260 Md. 720 ; accord Ward v. State, 30 Md. App. 113, 116 , 351 A. 2d 452 (1976), cert. den., 277 Md. 742 . This Court in Herbert v. State, supra, elaborated further: “When an individual obtains incriminatory matter from an accused, no matter how improperly, and such matter comes into the possession of the government without a violation of the accused’s rights by governmental authority, the exclusionary rule does not prohibit its use at trial.” Id. at 284-85.

Appellants, citing People v. Martin, 225 Cal. App.2d 91 , 36 Cal. Rptr. 924 (1964), and Thacker v. Commonwealth, 310 Ky. 702 , 221 S.W.2d 682 (1949), argue that the Washington, D. C. police officers were acting as agents of the State even though they made the arrests merely as citizens. Thus, they contend there was governmental action so as to bring into operation the exclusionary rule.

We find these cases distinguishable. In People v. Martin, supra, three City of Los Angeles policemen obtained information that the defendant had previous convictions for possession and use of narcotics. The defendant was not a resident of Los Angeles but lived in the City of Alhambra. The Los Angeles policemen traveled to the defendant’s hotel in Alhambra.

Once there, they approached the defendant in the hallway of the hotel; one officer identified himself as such and they arrested defendant for use of narcotics. The officers, having obtained permission to enter the hotel room from the defendant, searched it and found a quantity of heroin. The State argued upon the authority of Burdeau v. McDowell, 256 U. S. 465 , 41 S. Ct. 574 , 65 L. Ed. 1048 (1921), that the heroin was admissible since it was obtained in an unreasonable search and seizure by a private citizen. The California Court held Burdeau inapplicable and stated the following as its reason: “... [T]he evidence was discovered by the arresting officers themselves, albeit as private citizens.

Their citizen’s arrest was illegal...(... no misdemeanor offense was either attempted or committed in their presence). Their search of ¹²⁶ defendant’s premises, as an incident to their illegal citizen’s arrest, was also illegal... The seizure of the evidence during that illegal search must be realistically construed ... It was in the performance of their duties as officers and as employees and agents of the state.

In fact, Officer Wesley so indicated when he identified the officers to defendant: .. stated, police officers.’ Accordingly, the search and seizure must be held ... to have been within the proscriptions of both the state and federal constitutions.” (Emphasis added.) 36 Cal. Rptr. at 927 . The Kentucky Court in Thacker v. Commonwealth, supra, held that citizen arrestors, who were particularly instructed by local police officers, the sheriff of the county, and state patrolmen to watch for a certain automobile and apprehend its occupants, one of whom was suspected of murder, were subject to the proscriptions against unlawful searches and seizures contained in Section 10 of the Kentucky Constitution. According to the Court a private individual, acting in concert with or at the direction of a peace officer must abide by Section 10 of the Kentucky Constitution.

Id. at 683. The present case bears no resemblance to either People v. Martin, supra, or Thacker v. Commonwealth, supra. Unlike the police officers in Martin , the officers here were not acting in the course of an investigation when they apprehended the appellants, although one D. C. detective did identify himself as a police officer. These detectives were in plain clothes, traveling in an unmarked car, and apparently off-duty.

They simply did not invoke the authority of the State by their actions. Thus, we cannot conclude that they were engaged in the performance of their duties as officers and as employees and agents of the State. People v. Martin, supra at 927. Nor do we think Thacker applicable to the present situation.

None of the Washington, D. C. detectives were acting at the express direction of Maryland law enforcement authorities. In the instant case the arrests were made by Washington police officers acting as private citizens. There is no evidence of government complicity on the part of the District of ¹²⁷ Columbia or the State of Maryland. Since this is true, then it follows that the evidence to be suppressed cannot be said to flow from impermissible government action, thus the exclusionary rule is not applicable and the motion was properly denied.

Herbert v. State, supra at 285. (b) Ingrain Ingram’s arrest was effected by a Prince