Bellam v. State

• Decision Date: 27 January 1964
• Docket Number: No. 175,175
• Citation: 233 Md. 368,196 A.2d 891
• Parties: John Paul BELLAM v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 368

233 Md. 368

196 A.2d 891

John Paul BELLAM v. STATE of Maryland.

No. 175.

Court of Appeals of Maryland.

Jan. 27, 1964.

Thomas J. Curley, Annapolis, for appellant.

Stuart H. Rome, Asst. Atty. Gen., (Thomas B. Finan, Atty. Gen., Baltimore, Marvin H. Anderson and Julian B. Stevens, Jr., State's Atty. and Deputy State's Atty., respectively, for Anne Arundel County, Annapolis) on the brief for appellee.

Before HENDERSON, HAMMOND, PRESCOTT, MARBURY, and SYBERT, JJ.

HENDERSON, Judge.

The appellant was convicted by the court without a jury under indictments in seven distinct cases of breaking and entering, with intent to commit a felony in six cases and of breaking and entering with intent to commit a misdemeanor in the seventh. These appeals are from three of the convictions, in which the sentences were six years each to run consecutively, thus imposing a total sentence of eighteen years.

The first question raised concerns the legality of the search of the appellant's home and the seizure therein of certain tools offered in evidence. The facts are virtually undisputed. The seven crimes under investigation were committed between November 27 and December 27, 1960. Shortly after the latter date Bellam, who had been under the probationary supervision of a probation officer, Mr. Siegert, fled the State leaving his wife and children behind. Mr. Siegert went to see Mrs. Bellam and told her the police had information that the tools used in some of the burglaries were located in her house, and asked her permission to make a search. She at once agreed. She said she had no knowledge of any tools being in the house, but she had no objection to'the place being looked over relative to this.' Armed with this prior consent but without a search warrant, Mr. Siegert, accompanied by the police officers, went to the home during daylight hours on February 8, 1961. He introduced the officers to Mrs. Bellam, and she asked them in. Much to her surprise the police located a cache of tools hidden beneath the third tread of the stairway leading to the second floor.

The appellant objected to the admission of these tools in evidence. There was not only testimony that these tools would have been suitable for burglary and safe-cracking, but also that dust found on them was characteristic of firebrick safe material found at the scene of several of the burglaries. On taking the stand, the appellant denied that he owned the tools, or that he had any knowledge of the existence of the compartment under the stairs in which they were found.

We think the search was not unreasonable. We find nothing in the record to support the contention that Mrs. Bellam's consent was coerced. Mr. Siegert's testimony, and that of the other officers, was not contradicted in any way. The cases of Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 and Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, are distinguishable on the facts. The mere fact that it might have been possible to obtain a search warrant is not controlling. United States v. Rabinowitz, 339 U.S. 56, 66, 70 S.Ct. 430, 94 L.Ed. 653. While Rabinowitz has been distinguished in later cases it has not been overruled. See Chapman v. U.S., 365 U.S. 610, particularly Justice Frankfurther's concurring opinion at 618-619, 81 S.Ct. 776, at 780-781, 5 L.Ed.2d 828, and Wong Sun v. U. S., 371 U.S. 471, 480, 83 S.Ct. 407, 9 L.Ed.2d 441. We have said that the mere fact that the request is made by officers is not enough to resolve the issue as to whether consent was freely given. Gault v. State, 231 Md. 78, 81, 188 A.2d 539; Armwood v. State, 229 Md. 565, 569, 185 A.2d 357. As the joint occupant of the premises, even if the husband had not abandoned them (cf. Buetter v. State, 233 Md. 235, 196 A.2d 465). Mrs. Bellam was entitled to give consent and to bind her co-occupant in so doing.

The point has not been extensively discussed in the Maryland cases. In Franklin v. State, 208 Md. 628, 633, 119 A.2d 439, Judge Hammond, for the Court, held that an invitation to enter the hallway of an apartment dwelling, extended by a sixteen year old girl whose parents, the owners, were not at home, was enough to rebut the claim that the officers were trespassers. A case directly in point is Stein v. United States, 166 F.2d 851 (C.A.9th), cert. den., 334 U.S. 844, 68 S.Ct. 1512, 92 L.Ed. 1768. Cf. United States v. Sferas, 210 F.2d 69, 75 (C.A.7th), cert. den., 347 U.S. 935, 74 S.Ct. 630, 98 L.Ed. 1086, Morris v. Commonwealth, 306 Ky. 349, 208 S.W.2d 58 and United States v. Eldridge, 302 F.2d 463 (C.A.4th). See also People v. Carter, 48 Cal.2d 737, 312 P.2d 665, 670. The cases are not wholly in accord as to the extent of a wife's authority to authorize a search of joint premises in the absence of her husband. See State v. Evans, 45 Haw. 622, 372 P.2d 365, and Annotation, 31 A.L.R.2d 1078. The better reasoned cases point out that authority stems from the joint ownership, rather than from an implication of agency to act for the other. Some cases permit a search of those portions of the dwelling used in common, but not a search of the bedroom or personal effects of a spouse. On the facts of the instant case we think a right to give consent is supported by the weight of authority.

The second point raised on appeal relates to the imposition of sentence. In case No....