Anthony v. State, 28

• Decision Date: 14 February 1968
• Docket Number: No. 28,28
• Citation: 3 Md.App. 129,238 A.2d 130
• Parties: James ANTHONY a/k/a J. A. McCoy, Calvin Smith and Stanley Thornton v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 129

3 Md.App. 129

238 A.2d 130

James ANTHONY a/k/a J. A. McCoy, Calvin Smith and Stanley Thornton v. STATE of Maryland.

No. 28.

Court of Special Appeals of Maryland.

Feb. 14, 1968.

Certiorari Denied June 5, 1968.

Robert A. Diemer, Washington, D. C., for James Anthony.

Jerome Stanbury, Hyattsville, for Calvin Smith.

William R. Scannell, Landover Hills, for Stanley Thornton.

Fred Oken, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Baltimore, Arthur A. Marshall, Jr. and James E. Kenkel, State's Atty., and Deputy State's Atty., for Prince George's County, respectively, Upper Marlboro, on brief for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

MURPHY, Chief Judge.

At a joint trial held on December 6, 1966, a jury in the Circuit Court for Prince George's County found the appellants, James Anthony A/K/A J. A. McCoy, Calvin Smith, and Stanley Thornton, guilty of shoplifting and grand larceny. Each appellant was thereupon sentenced to a term of six years in the Maryland House of Correction. Their principal contentions on this appeal concern the validity of their arrests and the legality of the search of the automobile in which they had been riding when apprehended.

There was evidence adduced at the trial from which the jury could find that on the afternoon of July 28, 1966 Raymond Meyer, the manager of Webster Clothes Inc., a men's clothing store in the Capital Plaza Shopping Center in Prince George's County, was alone in his store when appellants Anthony and Smith entered. Appellant Anthony at this time was carrying a large Hecht Company shopping bag, and the pair proceeded to the suit department where appellant Smith tried on several suits. Shortly thereafter, appellant Thornton, who was also carrying a large Hecht Company shopping bag, entered the premises with another man. As Meyer was approaching appellant Thornton, who had gone to the back of the store, the other man, who had entered with Thornton, attached Meyer's attention by inquiring of him the price of a certain bottle of cologne. At this time, appellants Smith and Anthony were still in the suit department. Thereupon all four men proceeded to move toward the exit where Meyer approached them and asked if he could help them out with the merchandise they had in their shopping bags. The men denied having anything in the bags, and left the store at the same time. Immediately after their departure, Meyer counted the suits on a rack which he considered a possible target of theft and discovered that three suits were missing. Meyer testified that he had counted the suits in that rack 'within an hour or so beforehand.' He then called the Prince George's County Police to report the theft. The police dispatcher, acting on information supplied by Meyer, alerted all police cars that a larceny of four to five suits had occurred at the Webster Men's store in Capital Plaza, and that the suspects were four colored males, nineteen to twenty-one years of age, two of whom wore dungarees, one of whom wore plaid Bermuda shorts, and one of whom wore a purple shirt. Officer Robert J. Edwards, hearing this information while driving in his police vehicle on the Baltimore-Washington Expressway near Capital Plaza, remembered that a short time before he had observed a colored male standing beside a Corvair automobile on the rear parking lot at Capital Plaza. Officer Edwards headed toward Capital Plaza where he observed the same Corvair pulling out of the parking lot with five Negro males in it. He followed the Corvair for about two miles, nothing that one of the occupants was wearing a purple shirt, and that the driver was the same man he had seen standing beside the car in the parking lot earlier. Officer Edwards stopped the Corvair and approached it on foot, whereupon he observed that, of the three men in the back seat, two wore dungarees and one wore plaid shorts. Officer Edwards testified that the three appellants were among the occupants of the car. After approaching the car, the officer asked the driver, Richard Bynum, to produce his driver's license and vehicle registration card. When Bynum failed to produce his registration card, Officer Edwards had the vehicle impounded for lack of proof of ownership. A tow truck was summoned to take the Corvair to the Hyattsville station of the County Police Department, while another police cruiser came to take the occupants. Edwards testified that he did not formally arrest or charge the five men at this time, but that, had any of them tried to leave, he would have been stopped.

When they arrived at Hyattsville, the three appellants, together with the other passenger, were taken to the Squad Room of the Uniform Division. Bynum, the driver, was taken to the Detective Bureau where he was asked about the ownership of the car he had been driving by Detective James Fitzpatrick. A check with the authorities substantiated that Bynum in fact owned the vehicle. At this time, Mr. Meyer from the Webster store arrived at the station, and Detective Fitzpatrick took him to the Squad Room where he identified the four subjects as being the men he had observed in his store earlier. They were then formally charged with larceny. Detective Fitzpatrick then returned to the Detective Bureau where he advised Bynum of his right to remain silent and of his right to counsel. The officer then requested that he be allowed to look in Bynum's vehicle. Bynum consented to the search and signed a waiver statement indicating his consent which was introduced into evidence at the trial. Although each of the appellants testified that Fitzpatrick had told Bynum that if he would not consent to the search, he would rip the trunk open, Fitzpatrick testified that no threats, promises, or inducements were made to Bynum and that none of the appellants were present when he had discussed searching the car. Bynum signed the waiver document approximately fifteen minites after he had arrived at the station.

After consenting to the search, Bynum was taken to the parking lot adjacent to the station where he, in the presence of Fitzpatrick, Mr. Meyer, and Detective Salter, opened the trunk of the car with his key. Inside the trunk they discovered two large Hecht Company shopping bags containing two suits each. Detective Fitzpatrick pulled the suits from the bag; they had Webster's labels and tickets on them. Mr. Meyer identified the suits, and they were received into evidence at the trial.

Appellants contend that their arrests were illegal and that the ensuing search of the vehicle in which they were passengers was likewise illegal since they did not consent to it, and are not bound by the owner Bynum's consent to search the vehicle; and that, in any event, Bynum's consent to search was not voluntarily given.

On the record before us, we hold that the arrest of the appellants occurred when Officer Edwards stopped the Bynum vehicle and removed appellants to police headquarters. That the officer then had probable cause to believe that a felony had been committed and that the appellants had committed it is too clear to require extended discussion; suffice it to note that Edwards, as a member of the police team investigating a reported crime, had specific and reliable information from which he concluded that the felony of grand larceny had been committed and that persons matching appellants' description had committed it. See Michaels v. State, 2 Md.App. 424, 234 A.2d 772; Lamot v. State, 2 Md.App. 378, 234 A.2d 615. The arrest being lawful, the police could, as an incident thereto, search the vehicle in which appellants were passengers at the time of their arrest. Knotts v. State, 237 Md. 417, 207 A.2d 100; Barton v. State, 2 Md.App. 52, 233 A.2d 330; Gaudio v. State, 1 Md.App. 455, 230 A.2d 700. And while ordinarily a search of a motor vehicle can be incident to an arrest...