Davis v. Warden of Md. Penitentiary

• Decision Date: 18 November 1963
• Docket Number: No. 21,21
• Citation: 195 A.2d 37,232 Md. 670
• Parties: Donald DAVIS v. WARDEN OF the MARYLAND PENITENTIARY. Post Conviction
• Court: Maryland Court of Appeals

Page 670

232 Md. 670

195 A.2d 37

Donald DAVIS v. WARDEN OF the MARYLAND PENITENTIARY.

Post Conviction No. 21.

Court of Appeals of Maryland.

Nov. 18, 1963.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT, HORNEY, MARBURY, and SYBERT, JJ.

HENDERSON, Judge.

In this application for leave to appeal from a denial of post conviction relief, the petitioner raised ten points below, which were discussed in an opinion by Judge Sodaro. The first contention was that the petitioner was convicted on evidence obtained as a result of an illegal search and seizure, and Judge Sodaro stated that the objection could not be raised in a post conviction proceeding. That statement would appear to be too broad in the light of Mapp V. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, because a claim of a violation of procedural due process would seem to be open under Code (1963 Supp.), Art. 27, sec. 645A(a). That same section adds a proviso, however, that 'the alleged error has not been previously and finally litigated or waived in the proceedings resulting in the conviction * * *.' In the instant case we heard and decided a direct appeal in Davis v. State, 225 Md. 45, 168 A.2d 884. No question of illegal search was there raised, although the admissibility of certain bullets found in Davis' pocket was challenged. We found no error. These bullets, together with a large amount of paper money and checks, later identified as belonging to the owner of the drug store who was robbed, were found on Davis when he was arrested and searched near the scene of the robbery. Although the fact that Davis' appeal was held prior to the decision in Mapp may have some relevancy (see Hall v. Warden, Maryland Penitentiary, 313 F.2d 483 (C.A. 4th), cert. denied, Pepersack v. Hall, 374 U.S. 809, 83 S.Ct. 1693, 10 L.Ed.2d 1032 (1963)), failure to raise or press an objection may still constitute a waiver, in our view. See Ralph v. Warden of Maryland Penitentiary, 230 Md. 616, 185 A.2d 366, and cases cited.

But if we assume, without deciding, that the point was not finally litigated or waived, the record seems clear that there was no illegal search and seizure in the instant case. Davis and Tiller were observed by Officer Cooper and another officer near the scene of the robbery of Levine's Pharmacy a few minutes after the robbery. At that time Cooper was driving to the pharmacy in a patrol car, to assist other officers who had been ordered to the scene by a police broadcast of the robbery...