Gardner v. State

• Decision Date: 08 April 1969
• Docket Number: No. 295,295
• Citation: 6 Md.App. 483,251 A.2d 901
• Parties: Otis GARDNER and Jerome Verdell Maple a/k/a James Verdell Maple v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 483

6 Md.App. 483

251 A.2d 901

Otis GARDNER and Jerome Verdell Maple a/k/a James Verdell Maple v. STATE of Maryland.

No. 295.

Court of Special Appeals of Maryland.

April 8, 1969.

[251 A.2d 903] Michael Lee Kaplan, Baltimore, with Morris Lee Kaplan, Baltimore, on brief, for appellants.

John J. Garrity, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Julian B. Stevens, Jr., and Ronald M. Naditch, State's Atty. and Asst. State's Atty., for Anne Arundel County respectively, on brief for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

ORTH, Judge.

Otis Gardner and Jerome Verdell Maple, also known as James Verdell Maple, appeal from the judgments rendered against them at a court trial in the Circuit Court for Anne Arundel County. Each was convicted of storehouse breaking with intent feloniously to steal and each was sentenced to 4 years, Gardner's sentence to run consecutively with any sentence he was then serving. ¹ Maple contends that the trial court erred in denying a motion to suppress evidence, claiming that the evidence was obtained by a search and seizure unreasonable as incident to an illegal arrest. Each contend that the evidence was not sufficient to sustain his conviction.

THE MOTION TO SUPPRESS

We hold that the court did not err in denying the motion. Evidence adduced on the motion showed that the premises 1810 North Brunt Street in Baltimore City was a residential dwelling in which no commercial enterprise was conducted nor were there any commercial establishments on Brunt Street. A small alley ran between the rear of the premises in the 1800 block of Brunt Street and the rear of buildings facing on the 1800 block of Pennsylvania Avenue. The buildings facing on Pennsylvania Avenue, running upward from 1801 Pennsylvania Avenue were a Thom McAnn's store (a shoe store), a food market, a large shoe store, a small store 'used primarily where workers meet in the morning who pave streets', a liquor store, a pool hall and a fashion shop. ² '(T)he people that have these stores cement all their rear windows and doors up.' Shortly before 6:30 A.M. on 9 August 1967 'The Western District' received information 'that some men were unloading some stereos and hi-fi's and televisions from a U-Haul It truck in the rear of 1800 block North Brunt Street.' ³ A lieutenant, a sergeant and three officers went to the rear of 1810 Brunt Street, arriving about 6:30 A.M. ⁴ They saw a U-Haul It truck, a 1967 Ford, bearing Oregon license tags T 256684 parked in the alley-'almost the whole alley was completely taken up by the width of the truck.' There was a door in the rear of 1810 Brunt Street from a kitchenette, then there was 'about 25 feet * * * of yard to the alley.' The truck was parked so that the tailgate was opposite the yard. '(I)f you stepped right off the truck you could * * * walk straight 25 feet (through the yard) and be right in the house.' The rear doors of the truck were open. Inside the police saw television sets, radios, stereos, consoles and appliances 'brand new.' No one was in the truck. The rear door of 1810 Brunt Street was open. Two officers were dispatched to the front of the premises. The lieutenant, the sergeant and an officer went to the rear door. The police could look into the kitchenette and 'all the way into the dining room.' They saw 'a good ten or fifteen' new appliances in the kitchenette and dining room. There were three or four television sets, and radios, stereos, consoles (which they could not determine at the time contained stereos or television sets) and clock radios. 'They weren't arranged for a showroom, that's for sure. They were piled on top of one another.' The police announced themselves as police, 'identifying ourselves as same.' When they did this they heard 'several voices hollering police, police, the police are here * * * We heard the front door being opened and shut and we heard men running back into the dining room, I assume, where the hallway is, running up the steps to the second floor, we heard a window in the rear, in the rear of 1810 Brunt Street being opened.' When cries of 'police' were heard the lieutenant and the sergeant went 'one or two steps' into the house. When they heard the men run up the steps and the window being opened they stepped back into the yard and observed three men coming out of the second floor window which opened on a roof. The men ran across the roof to 1812 Brunt Street. The police called for them to stop. 'They stopped and came down' and were apprehended. As one of the officers who had been dispatched to the front of the premises was standing in front of the house, he heard 'a lot of screaming 'Police' and a lot of running coming from in the house.' The front door opened. '(T)here were some people there and they tried to get out and it closed right fast, I couldn't identify exactly who it was, who tried to get out when they saw me, I was in uniform.' He received word that people were arrested in the back and went to the rear of the house. He entered the rear door and while inside heard some more movement coming from the second floor. He went to the second floor and found a man in the bathroom behind a closed door. He arrested him. Two of the men who climbed out the window were Maple and Clark and were identified at the trial by the sergeant. The other man was Roy. The man apprehended in the bathroom was Taylor. 'On information received' a warrant was obtained for the arrest of Gardner and he was subsequently arrested under its authority.

Maple contends that his arrest was illegal on three grounds: (1) it was not shown that the information received by the police as to men unloading the goods from the truck came from a reliable informer; (2) the arresting police did not have probable cause to believe that a felony had been committed and that he had committed it nor did they have probable cause to believe that a misdemeanor had been or was being committed in their presence or view and that he was the misdemeanant; (3) the arrest was the result of a trespass by the arresting officers.

(1)

The appellant in support of his first ground relies on the rule stated in Hundley v. State, 3 Md.App. 402, 405, 239 A.2d 593, that information furnished to a law enforcement officer by an informer, together with the officer's personal knowledge, may serve as the basis of sufficient probable cause for a warrantless arrest if the trial court is informed with specificity what the informer actually said, and why the officer thought the information was credible, and the court is satisfied such information was sufficiently reliable and reasonably trustworthy to give the officer as a prudent man, probable cause to believe that the accused had committed or was committing an offense. We applied the rule in Mullaney v. State, 5 Md.App. 248, 246 A.2d 291. But the rule is not here applicable. The evidence as to the information received explained only why the police went to 1810 Brunt Street and is no more relevant in the circumstances to the determination of probable cause for the arrest than if the police had observed the truck by mere chance. The legality of the arrest of Maple is determinative by what the officers did and had reason to believe by what they properly saw and heard when they arrived on the scene, not why they were there. For the purpose of decision here the 'information received' does not serve in any way as basis of sufficient probable cause and is given no probative value with respect thereto. As we approach the issue of the legality of the arrest it plays no part in our consideration. ⁵

(2)

The rules with respect to the legality of a warrantless arrest by police officers for felonies and misdemeanors are firmly established in this State and have been stated and restated in opinions of this Court and the Court of Appeals. See Simms v. State, 4 Md.App. 160, 166-167, 242 A.2d 185. The rules as stated are clear but may at times be difficult to apply, not only because of the infinite variety of factual circumstances surrounding an arrest, but because an integral element of the rules is the phrase 'probable cause.' 'The rule of probable cause is a non-technical conception of a reasonable ground for belief of guilt, requiring less evidence for such belief than would justify conviction, but more evidence than that which would arouse a mere suspicion.' Edwardsen v. State, 243 Md. 131, 136, 220 A.2d 547, 550; Terrell v. State, 3 Md.App. 340, 359, 239 A.2d 128.

In the instant case, however, we have no difficulty in determining that there was probable cause for the arresting officers to believe that a felony had been committed and that Maple was one of those who had committed it. The time of day when they saw the truck; their observance through the open doors of the truck that it was loaded with new major appliances; the location of the truck immediately adjacent to the rear of 1810 Brunt Street; that the even 1800 block Brunt Street consisted only of residential dwellings; that buildings on Pennsylvania Avenue, the rears of which were on the alley contained no commercial establishments dealing with the type of goods observed in the truck and that access to those establishments from the alley had been cemented up; that the rear door of 1810 Brunt Street was open; that they observed through the open door of that dwelling a number of new appliances of the type in the truck, stacked in the kitchenette and dining room, 'piled on top of one another'; that when they announced their identity as police at the open door there were cries from within of 'police, police, the police are here' immediately followed by the front door being opened and quickly shut and the sound of running footsteps to the second floor of the house and a window being opened; that they saw three men climb out the window and run across a roof to the next house; Maple was one of these men. From the totality of these circumstances the...