Carter v. State

• Decision Date: 11 June 1973
• Docket Number: No. 656,656
• Citation: 305 A.2d 856,18 Md.App. 150
• Parties: James Wesley CARTER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 150

18 Md.App. 150

305 A.2d 856

James Wesley CARTER v. STATE of Maryland.

No. 656.

Court of Special Appeals of Maryland.

June 11, 1973.

Robert V. Lazzaro, Baltimore, for appellant.

James L. Bundy, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Howard L. Cardin, State's Atty., for Baltimore City and Joseph B. Harlan, Asst. State's Atty., for Baltimore City, on the brief, for appellee.

Argued before MENCHINE, SCANLAN and DAVIDSON, JJ.

SCANLAN, Judge.

The appellant, James Wesley Carter, was found guilty of possession and control of narcotics following a trial in the Criminal Court of Baltimore which began before Judge Joseph L. Carter and was concluded, by mutual consent of the appellant and the State, before Judge J. Harold Grady, sitting without a jury. Appellant was sentenced to three years imprisonment.

The issue on this appeal is whether probable cause existed for the arrest of the appellant so as to justify the search and seizure of incriminating narcotics evidence which occurred as an incident of his arrest. For the reasons stated below, we conclude that probable cause did not exist to arrest the appellant and that the trial court thus erred in admitting the incriminating evidence over appellant's timely objection at trial.

On January 10, 1969, Elijah Davis reported to the Baltimore Police Department that a 1967 Chevrolet Camaro, carrying license tags No. HE-7388 and owned by Davis' brother-in-law, Robert Lee Fletcher, had been stolen. Davis has been driving the car just prior to the theft and he reported to the police that the car had been stolen within five minutes after it was taken.

The police recovered the stolen vehicle within ten minutes after receiving the report from Davis. It was recovered about a mile from the place from which it had been stolen. In the interval following the theft and before the recovery of the car it had been involved in a hit-and-run accident and was wrecked in the crash. The police took the car to the police lot where Davis viewed it. Subsequently, Fletcher, the owner of the car which had been stolen, applied to and received permission from the State Department of Motor Vehicles for a transfer of the license tags HE-7388 to another automobile. While the record is not absolutely clear on the point, it appears that the police returned the original license plates to Fletcher following recovery of the stolen vehicle.

On the day the car was stolen, January 10, 1969, the police prepared and filed a stolen vehicle report numbered 1A150. Despite the recovery of the stolen vehicle within ten minutes after it had been taken, report 1A150 was not cancelled or rescinded prior to the occurrence of certain events on March 10, 1969. In the early morning hours of that day, Officer Richard Nock of the Baltimore City Police Department observed a Chevrolet hardtop car (a Caprice) moving at a high rate of speed. Nock was traveling in a police cruiser alone. He chased the car and pulled it over to the curb.

Officer Nock approached the car which contained two persons, Elijah Davis, who was operating the vehicle, and the appellant, who was a passenger. Officer Nock testified that the driver gave him his driver's license but no motor vehicle registration card. Davis and the appellant both testified that the former gave Officer Nock a temporary registration card. While the driver and appellant remained in their car, Officer Nock returned to his cruiser and radioed for a stolen car report. At the preliminary hearing, Officer Nock testified that the police dispatcher advised him that the license tags on the car (HE-7388) he had stopped had been stolen and that there was a warrant out for the operator for traffic violations. A year later, in his testimony on the motion to suppress, Officer Nock testified that the dispatcher had told him that the vehicle bearing the HE-7388 tags had been stolen and that the car and its operator were also wanted in connection with a hit-and-run violation.

After talking to the police dispatcher, Officer Nock ordered Davis and the appellant out of the car, advised them that he had received information that the car was wanted and that they were under arrest, and began a routine frisk for weapons. According to Officer Nock, at this point in time the appellant 'blurted out' that: 'The stuff is in my right pants pocket.' Officer Nock inquired: 'What stuff,' to which the appellant replied: 'Heroin.' Officer Nock then reached into the appellant's pocket and removed fifty glassine bags of white powder, which were later examined and found to contain heroin. According to Officer Nock, the appellant then said that: 'The gun is under the front driver's seat.' The police officer found a gun at that location.

At trial, the police dispatcher did not testify but the State introduced a green card, used by the police dispatcher, which indicated that the dispatcher had received an inquiry from Officer Nock concerning automobile license tags HE-7388 at 2:20 A.M. on March 10, 1969. The green card also contained a penciled reference to stolen vehicle report 1A150, the report which the police had prepared on January 10, 1969 when Davis had reported the theft of the 1967 Chevrolet Camaro, bearing the license number HE-7388. The dispatcher's green card also contained a notation reading: 'Vehicle & Operator wanted for Traffic Violations.'

Officer Nock took Mr. Davis and the appellant to the police station where they were charged with the possession of narcotics, the possession of a deadly weapon, and a stolen automobile. Subsequently, Officer Nock learned that the car in which Davis and the appellant were riding when he stopped them had not been stolen. It appears, for reasons not discernible from the record, that when Fletcher's 1967 Chevrolet Camaro was recovered on January 10, 1969, there was a failure to correct the police records to show that the vehicle had been recovered.

Judge Grady found that appellant's arrest, and the search and seizure incident thereto, were valid. In his opinion, Officer Nock, on the basis of the information received from the police dispatcher, had reasonable grounds to believe that the automobile which he stopped, and in which the appellant had been riding, was a stolen car and, therefore, was justified in arresting the appellant and conducting a search of his person. Accordingly, the trial judge admitted into evidence the bags of heroin taken from appellant's person when he was searched.

Thus, the precise issue which arises on this appeal is whether a police officer in the field who was advised by his dispatcher that a car which the former had stopped for speeding was a stolen vehicle had reasonable grounds to arrest the driver and passenger of the vehicle and to search them, even though the information which the dispatcher transmitted was erroneous, since it referred to a different vehicle and one which had been recovered by the police within ten minutes after it was stolen, three months before the challenged arrest and search and seizure took place.

Article 27, § 594B(c) of the Maryland Code provides:

'A police officer may arrest a person without a warrant if he has probable cause to believe that a felony has been committed or attempted and that such person has committed or attempted to...