Bolesta v. State, 355

• Decision Date: 29 April 1970
• Docket Number: No. 355,355
• Citation: 264 A.2d 878,9 Md.App. 408
• Parties: James Michael BOLESTA v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 408

9 Md.App. 408

264 A.2d 878

James Michael BOLESTA v. STATE of Maryland.

No. 355.

Court of Special Appeals of Maryland.

April 29, 1970.

Daniel O. Tracy, Jr., Towson, for appellant.

Joseph R. Raymond, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and Smauel A. Green, Jr., State's Atty., and Charles E. Foos, III, Asst. State's Atty. for Baltimore County, on brief, for appellee.

Argued before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

MURPHY, Chief Judge.

Appellant was convicted at a court trial of the felonies of unlawfully possessing and controlling marihuana, a prohibited narcotic drug, and sentenced to five years under the jurisdiction of the Department of Correctional Services. He contends on appeal that as he was illegally arrested, the subsequent search of his person and seizure therefrom of a quantity of marihuana was likewise illegal; and that the admission into evidence of the marihuana seized as a result of that search constituted reversible error.

The State produced only one witness at the trial-Detective thomas Manzari-who testified that on February 12, 1969, he received a phone call from Stephen Sabo, a federal narcotics agent, who told him that at 4:30 p. m. that day appellant, a Social Security Administration employee, would have in his possession two ten dollar bags of marihuana and 'would be riding with another subject from work and he would arrive at the Woodlawn Drive and the Annex Building of the Social Security complex at approximately 4:30, to meet with an employee.' Manzari testified that he knew appellant, having previously arrested him for selling narcotics; that Sabo described appellant as being 6 4 , having a long mustache and long sideburns; and that Sabo said that appellant 'would probably' try to sell him (Manzari) two bags of marihuana at 4:30. Acting on this information, manzari went to the Social Security complex at 3:30 p. m. where he met with Sabo and one Mark Manlin-a person not otherwise or further identified. Manzari stated that 'we went over the same information that they had given me previously on the phone.'; (emphasis supplied) that thereafter, at 4:25 p. m., he drove to the Annex Building on the Social Security lot where he parked, at which time he observed a red Comet automobile driven by a female come onto the Annex Building parking lot; that appellant was a passenger in the vehicle, and met the description given of him by Sabo; that appellant went into the Annex Building and a short time later came out, got back into the automobile and drove west on Woodlawn Drive. After the vehicle had travelled a short distance, Manzari stopped it, arrested and searched appellant and seized a quantity of marihuana from his person. Manzari admitted that his information 'in regard to probable cause for arrest was obtained strictly by Agent Sabo.' Sabo did not testify.

Whether a warrantless felony arrest is constitutionally valid necessarily turns upon whether, at the moment the arrest was made, the arresting officer or the police acting as a team had probable cause to make it-whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing a felony. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62; Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; Farrow v. State, 233 Md. 526, 197 A.2d 434; Simms v. State, 4 Md.App. 160, 242 A.2d 185. Where, as here, the constitutional validity of the warrantless arrest was properly challenged by timely objection, it is the function of the court to determine for itself the persuasiveness of the facts relied upon by the police to establish probable cause for the arrest. Beck v. Ohio, supra; Edwardsen v. State, 231 Md. 332, 190 A.2d 84. Evidence to show the basis upon which the arresting officer acted in making the arrest, including the nature and details of information received from other law enforcement officers and/or informants, is both relevant and admissible on the issue of probable cause and must affirmatively be shown if the State is to carry its burden of proving the legality of the arrest. Mullaney v. State, 5 Md.App. 248, 246 ,.a.2d 291. Where the arrest is initiated on hearsay information received from an informant, the State to establish its legality where challenged should sufficiently inform the trial judge of some of the underlying circumstances from which the informant concluded that a crime was being or had been committed by the person to be arrested, and some of the underlying circumstances from which the police concluded that the informant was credible or his information reliable. See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, and Mullaney v. State, supra, 5 Md.App. at page 254, 246 A.2d 291. It is not necessary in all cases, however, that the basis of the informer's conclusion that the accused was committing a crime be shown to establish the legality of the arrest. Where as in Draper v. United States, supra, reaffirmed in Spinelli v. United States, supra, the arrest is initiated on hearsay information received from an informant whose reliability is established on the record, the fact that the underlying basis for the informer's conclusion that the accused was committing a crime is not shown does not render the arrest illegal, so long as the arresting officer, by his own observations, is able to corroborate the substance of the informer's information, thus providing a substantial independent basis for crediting the hearsay. But under this test, as with the other, the reliability of the informer must be shown on the record; it cannot be established solely by reason of the fact that when the informer's information was acted upon it proved accurate. Cf. Frey v. State, 3 Md.App. 38, 237 A.2d 774.

In Mullaney, as here, the State claimed that probable cause could be established solely by the testimony of the arresting officer that in making the arrest he acted on information provided to him by a reliable police officer. In that case, the arresting officer testified that he was told by a police officer of a neighboring county that one of that officer's informers had told him that the accused was then at a designated motel in possession of a large quantity of marihuana. While the credibility or reliability of the informer was not shown, there was testimony from the arresting officer that he believed his fellow officer to be reliable. We there noted that the observations of fellow law enforcement officers constitute a reliable basis in the assessment of...