Wilson v. State

Sybert, J., delivered the opinion of the Court. The appellant, Franklin Woodrow Wilson, was convicted by a jury in the Circuit Court for Montgomery County of breaking and entering a restaurant with intent to steal goods valued at $100.00 or more, and of the larceny of $1,033.00 therefrom, and was sentenced to concurrent terms in the penitentiary of ten years on the breaking count and fifteen years on the larceny count. In this appeal he contends that he was arrested illegally; that certain items introduced in evidence against him were the products of illegal searches and seizures; and that Judge Pugh, who presided at his trial, committed prejudicial error by refusing to allow him to argue the legality or not of the arrest and of the searches and seizures to the jury, and by failing to give requested instructions on the questions of arrest and search and seizure. According to the State’s evidence, in the early morning of November 30, 1963, the safe of a restaurant in Silver Spring, Maryland, was rifled of approximately $1,500.00 in cash (of which $1,033.00 belonged to the owner of the restaurant).

The plunder included $80.00 in quarters, dimes, nickels and pen ²⁴⁸ nies in rolls, and $40.00 in loose half-dollars and pennies. Entrance to the restaurant was gained by prying open a side door. The safe was opened by knocking off the combination dial and punching in the lock mechanism. Detective Kennedy, the investigating officer, testified that this method of opening a safe resembled that used in an attempted safe burglary at another location two weeks earlier.

He stated that although no one was apprehended in the prior case he was told by an informer that the appellant had been involved, and that since he had stopped the appellant for a traffic violation a few days prior to the restaurant burglary, he knew where he lived. The officer went to Wilson’s rooming house at 11:00 o’clock on the morning of the burglary, without a warrant, to question him. Upon his arrival the appellant was awakened by his landlady. The officer testified that after identifying himself to Wilson he asked him whether he would accompany him to the Silver Spring Detective Bureau to discuss something with him and that Wilson agreed.

The officer said Wilson “was allowed to drive his own car, and I followed him * * On the five mile trip to Silver Spring Detective Kennedy stopped at a gasoline station to make a telephone call and the appellant got out of his car to obtain a package of cigarettes. The officer said he could see Wilson through the window at all times. Wilson then followed the officer’s car to the police station. On arrival both vehicles were left on the parking lot and the two men went to the second floor of the station where Wilson was questioned by Detective Kennedy in regard to the restaurant burglary for approximately forty-five minutes.

Lieutenant Treadwell was present during part of the interrogation. Wilson admitted that he and some friends had had dinner at the restaurant on the previous night. The officer stated that after Wilson had said no one other than himself had driven his car, he asked the appellant whether he could look in the vehicle and Wilson said “all right”, proffering the key. However, the officer declined to take the key and instead asked the appellant to accompany him to the car, which he did.

Kennedy then searched the inside of the vehicle, discovering a quantity of pennies (later found to amount to $6.20) and three cotton gloves, but nothing was seized. ²⁴⁹ The detective then asked Wilson whether he could look in the car trunk. Appellant said yes, but that the key was at his home. The officer offered to drive him home and Wilson accepted. Kennedy said that at Wilson’s invitation he went into the house when the latter obtained the key.

Upon their return to Silver Spring the appellant opened the trunk of his car himself, whereupon the officer observed inside two wrecking bars, two cold chisels, a small sledge hammer, a metal punch and some loose change wrapped in a Turkish towel. The officer testified that the head of the hammer was painted blue and that the battered combination dial of the restaurant safe had blue “stains” on it. Likewise, he said a later test showed that white paint on one of the tools matched the white paint on the door of the restaurant. The officer further testified the appellant had told him earlier that the only things in his trunk were auto tools and some half-dollars he had been saving and that upon discovery of the implements mentioned Wilson denied any knowledge of them.

The tools and the towel and its contents were seized by the officer. The towel was taken upstairs and the loose coins therein were counted and found to consist of half-dollars, quarters, dimes, nickels and pennies totaling approximately $64.00. The officer thereupon obtained an arrest warrant which was served on the appellant. The latter at the request of the policeman then emptied his pockets of the following: $431.00 in paper money, rolled coins consisting of $30.00 in quarters, $25.00 in dimes and $8.00 in nickels, and some loose change, altogether totaling $499.65.

The pennies in the front portion of the car were then seized. According to the police officer the appellant told him that he had been saving the coins. The tools and money taken from the car, and the money taken from the appellant’s person, were admitted in evidence over his objections. Throughout his testimony Detective Kennedy denied that Wilson was under arrest at any time prior to the execution of the arrest warrant.

On cross examination he stated that if Wilson had refused to go to the police station voluntarily, or bring his trunk key to the station, he would not have been forced to do so and the matter would have been dropped. During Detective Kennedy’s testimony, the appellant moved ²⁵⁰ to “quash the arrest” and to suppress the evidence admitted over his objections upon the grounds that his arrest was illegal and that the disputed evidence stemmed therefrom. Upon completion of the officer’s testimony the jury was excused and the appellant took the witness stand for the limited purpose of testifying in support of the motions. While he did not deny the various occurrences mentioned by the officer, he claimed that although he was never physically forced to comply with the officer’s several requests, he did not of his own free will comply but instead thought he was under arrest and merely submitted to police commands.

In support of this contention he testified that when the officer first came to his rooming house and had him awakened, the officer “showed me his badge and told me that he wanted to talk to me in Silver Spring. I felt-I had to go with him.” He said the detective told him to follow him to the police station. When the stop was made so that the officer could make a telephone call, Wilson said, he informed the officer he would like to buy some cigarettes and was told, “O.K., make sure I can keep an eye on you.” According to Wilson, during the forty-five minutes of questioning at the police station Lieutenant Treadwell came into the room and said to him: “What did you do it for ? Come on, say something.

What did you do it for?” (Wilson never admitted any complicity in the restaurant burglary.) And in regard to the search of the trunk of his car he stated that the officer ordered him to open it and, when informed that Wilson did not have a key, asked him, “Would you like to get one or would you like for me to get a search warrant and break your trunk open?” Then, according to Wilson, when he went to his room to get the key the officer followed him in, uninvited. The appellant further testified that upon their return to his car the officer said “O.K., now let’s see your trunk”, and although he unlocked the trunk with the key, the officer raised the trunk lid. Wilson explained his possession of the money found on his person and in his car by stating that he was saving coins, and that he had won substantial súms of money at race tracks and at cards. Judge Pugh denied the appellant’s motions, basing his decision on findings that the appellant was not arrested until the ²⁵¹ arrest warrant was executed and that the appellant had consented to the searches and seizures made before the arrest.

At the conclusion of the State’s case, the appellant moved for a judgment of acquittal, which was denied. He then took the stand and repeated before the jury his testimony that he had not acted of his own free will, but thought he was under arrest and only submitted to police authority, when he had accompanied Detective Kennedy to the police station, submitted to questioning and inspection of the inside of his car, obtained the trunk key, and unlocked the trunk for the officer. He denied that he had consented to any of the searches and seizures. In addition, he denied participation in the burglary and ownership of the tools and said he had no knowledge of how they got into the trunk.

He repeated his motion for a judgment of acquittal at the end of the whole case, and it was again denied. Neither the appellant nor the State submitted written requests for instructions, but the appellant, out of the presence of the jury, orally asked for an instruction “on arrest and search and seizure”, without amplifying the request at that time, although he had, just previously, advanced as one of the reasons for his motion for a judgment of acquittal, “the fact the evidence that is in — and circumstantial — is, in my opinion, the result of an illegal arrest, an illegal search, and/ or an illegal search, and therefore is in itself inadmissible.” Judge Pugh stated that he had ruled as a matter of law that the arrest was lawful, and that he would give the usual instructions to the jury on burden of proof, reasonable doubt and presumption of innocence. The appellant asked whether he would be permitted to argue to the jury on the legality of the arrest, and Judge Pugh replied that he could not do so, and that it was a matter of law which he could argue upon appeal in the event of a conviction, adding, “I would think the record amply protects you on the legality of the arrest.” After charging the jury in the manner in which he had said he would, and without any instruction as to the law of arrest or of search and seizure, Judge Pugh asked counsel whether there was anything further, and both sides answered in the negative. No exceptions to the charge were taken.

The appellant argued below, and argues here, that he was ²⁵² arrested before the issuance of the arrest warrant—either when the officer came to his room and in effect ordered him (as he claims) to accompany him to the police station, or at the time he was interrogated by the officer—and that such arrest was unlawful because it was not based on probable cause, but on mere suspicion. Thus, he says, the searches and seizures were the direct consequence of an illegal arrest and the incriminating evidence seized was inadmissible against him, citing Dailey v. State, 234 Md. 325 , 199 A. 2d 211 (1964), and Hall v. Warden, 313 F. 2d 483 (4th Cir. 1963). On the other hand, the State takes the position that Detective Kennedy’s positive testimony to the effect that the appellant freely and voluntarily consented to the searches and seizures renders the question of the legality vel non of his arrest immaterial, citing Rome and Modo v. State, 236 Md. 583 , 204 A. 2d 674 (1964), and Carter and Gray v. State, 236 Md. 450 , 204 A. 2d 322 (1964). The case of Hubbard v. State, 195 Md. 103 , 72 A. 2d 733 (1950), settles all doubts as to the respective functions of the court and jury in cases where there is a conflict of evidence as to whether incriminating tangible evidence was seized as the result of an illegal search, or with the consent of the accused.

We held