Evans v. State

• Decision Date: 17 March 1971
• Docket Number: No. 437,437
• Citation: 274 A.2d 653,11 Md.App. 451
• Parties: Frankie EVANS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 451

11 Md.App. 451

274 A.2d 653

Frankie EVANS v. STATE of Maryland.

No. 437.

Court of Special Appeals of Maryland.

March 17, 1971.

Roland Walker, Baltimore, with whom was Richard S. Kahn, Baltimore, on the brief, for appellant.

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

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

ORTH, Judge.

On 6 January 1970 about 4:15 P.M. Officer Theodore Brown of the Baltimore City Police Department was patrolling the area of Caroline Street and Ashland Avenue in a marked radio car. An unknown citizen, 'male, negro, 23 years of age', ran up to the car. 'He was very shook up. All he kept saying, 'I was just assaulted and robbed.' I tried to calm him down.' The man said he had been robbed in the 900 block Caroline Street. '(T)he person put a gun to his head and took some money from him. * * * He stated that the person assaulted and robbed him was in a 1967 Buick, red and black in color, and that the car was proceeding south on Caroline.' The officer told the man to get in the radio car and drove south on Caroline St. The officer put the complaint and the information received over the air. 'The traffic was heavy and as we approached the 300 block Caroline, the person in the car pointed out a 1967 Buick, red bottom, AG5493. Two persons in the car and the man in my car said, 'That's the man in that car there in the Buick that assaulted and robbed me." He indicated it was the man on the passenger side. 'The car was stopped in traffic in the 300 block Caroline. I was about three cars behind. At this point my complainant got excited, said, 'I don't want to be around.' I said, 'Stay in the radio car.' I jumped out of the car, pulled by revolver, went up to this car. Two persons were in it. I held them at gun point until assistance arrived.' The man in the passenger's seat was Frankie Evans. As Brown approached the car he noticed Evans 'was fooling around under the seat on his side of the car. I immediately told the driver to turn the car off and he handed me the keys.' The officer described Evans' actions in more detail. 'He was forward like this, as if shoving something under (the seat).' When assistance arrived in a short time complainant had disappeared. The men in the car were searched. Twelve glassine bags containing a white powder, a bottle cap with a handle on it and a burned bottom, a hypodermic needle, two needles, two syringes and twenty-one 22-short caliber bullets were found on Evans' person. As Evans got out of the car, Brown saw a silver plated revolver partially under the seat on his side of the car. It was .22 caliber and fully loaded with six rounds. On analysis the white powder in the bags proved to be heroin.

Evans was charged with possessing heroin and narcotic paraphernalia and with carrying a deadly weapon concealed upon his person. At a bench trial in the Criminal Court of Baltimore he was convicted of those offenses. At the trial he moved to suppress the evidence on the ground that it was obtained by a search and seizure which was unreasonable because incident to an illegal arrest. After the State adduced evidence on the issue as summarized above, he testified for the limited purpose of the motion. He said that he had seen a Charles Moore earlier that day. 'I went up on Gay and Caroline Street, get some narcotics. So, i saw him serve someone else, sell, you know, someone else narcotics and before I got up to him, when he was getting ready to walk away he dropped something. I picked it up. He turned, seen me picking it up and he asked me for it back and I refused. I did not given it to him. He told me he would get even with me. About ten minutes later this is when the Police arrived and arrested us. He said this man told him he had just been assaulted and robbed.' At the time the officer approached him he saw Moore walking away. 'He was the only one there.' Where Moore had dropped one there.' What Moore had dropped were 8 or 9 $5 packets of heroin bound by out to make a 'cop'-purchase heroin from him. He did not know Moore's address. He described him as a colored male, about 21 or 22 years old, 5 feet 3 inches tall. Evans was 6 feet 2 1/2 inches in height. On cross-examination Evans said Moore asked him to give the decks of heroin back several times and attempted to grab them. He did not give them back because most of the time what he had bought from him before was bad.

The lower court held that the arrest was legal. We share its view of the matter. '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 commit a felony whether or not in his presence or view.' Code, Art. 27, § 594B(c). We observed in Wescott v. State, Md.App., 273 A.2d 824, filed February 23, 1971 that probable cause within the contemplation of the statute has the same meaning it had under the common law rules of arrest without a warrant long followed in this jurisdiction, citing Rife v. State, 9 Md.App. 658 at 663, 267 A.2d 326. Its definition under those rules was fully discussed in Cleveland v. State, 8 Md.App. 204, 259 A.2d 73. And see Boddie v. State, 6 Md.App. 523, 252 A.2d 290; Simms v. State, 4 Md.App. 160, 242 A.2d 185.

It is settled that the legality of a warrantless arrest is measured by the existence of probable cause at the time of the arrest. Mullaney v. State, 5 Md.App. 248, 246 A.2d 291. Thus the question is whether the facts and circumstances within Officer Brown's knowledge, or of which he had reasonably trustworthy information, were sufficient to warrant a reasonably cautious person in believing that a felony had been committed by appellant. The information he had was from a man who said he had just been robbed nearby and that the robber was departing the scene in a certain direction in a specifically described automobile. The facts and circumstances within his knowledge were that he saw the described automobile shortly thereafter near the scene proceeding in the direction indicated by the victim. At that point the victim pointed out a man seated in the automobile as the robber. It was appellant. Of course, as we have repeatedly and emphatically stated, information upon which the police acted, even if hearsay as adduced in court, is directly relevant and admissible on the issue of the lawfulness of an arrest. Winebrenner v. State, 6 Md.App. 440, 443, 251 A.2d 610. It is clear that if the information here was 'reasonably trustworthy' a reasonably cautious person would be warranted in believing that a felony had been committed by Evans. Our inquiry turns to whether it may be deemed reasonably trustworthy.

The general rule was set out in Bolesta v. State, 9 Md.App. 408, 412, 264 A.2d 878, 880:

'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. * * * 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, * * * 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.' ¹

We have held that a report of a felony and a description of the perpetrators...