Glover v. State

• Decision Date: 14 February 1972
• Docket Number: No. 348,348
• Citation: 14 Md.App. 454,287 A.2d 333
• Parties: Fred Morris GLOVER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 454

14 Md.App. 454

287 A.2d 333

Fred Morris GLOVER v. STATE of Maryland.

No. 348.

Court of Special Appeals of Maryland.

Feb. 14, 1972.

Leonard R. Goldstein, College Park, for appellant.

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., State's Atty. for Prince George's County, and Robert W. King, Asst. State's Atty. for Prince George's County, on the brief, for appellee.

Argued before MURPHY, C. J., and MOYLAN and POWERS, JJ.

POWERS, Judge.

Alleged unlawful seizure by police of contraband discarded by appellant is the principal question presented in this appeal. Fred Morris Glover was found guilty by a Prince George's County jury of possession of heroin. He was sentenced by Judge William H. McCullough to serve four years, of which three years was suspended. He appealed.

After the jury was sworn, but before any evidence was taken on the issue of guilt, appellant moved orally to suppress evidence allegedly obtained by an illegal search and seizure. The evidence consisted of four aluminum foil containers of white powder. In a hearing on the motion out of the presence of the jury appellant testified that at about 2:00 A.M. on October 22, 1970 he left a dance at Glenarden and was driving down the highway when a police car pulled him over. The officer asked for his registration and driver's permit, and told him to get out of the car. He was not told that he was being arrested. While he was standing by his car a detective, who had passed by in another car and parked ahead, jumped in appellant's car. Appellant said the uniformed officer had him in front of the patrol car, and patted him down, and that Detective Howard searched his car. He was put in the patrol car and taken to the precinct. He said that the police showed him some foil containers, but he did not know where they found them, that they had not been in his possession, that he had never seen them before, and that they had not been taken from him.

Detective John O. Lew of the Prince George's County Police testified at the suppression hearing that he was observing from a point facing the right (curb) side of appellant's vehicle, about 50 to 75 feet away, at a garage, and that he observed appellant reach inside his shirt and throw down the heroin, which was then picked up from the ground at the right rear tire of appellant's vehicle. The detective said nothing was seized from appellant's automobile, or from his person. Detective Howard arrested appellant on the scene for possession of heroin.

Upon this evidence the motion to suppress was denied. Under Maryland Rule 729 f. appellant's objection to it was preserved for appeal.

Before the jury, the events of the evening were described in considerably more detail. Additionally it was shown that in the late evening of October 21, 1970, Detectives Lew and Gerald Howard separately stationed themselves so as to observe the entrance of a building at Glenarden where a dance was in progress. They watched appellant outside the building over a period of time. When appellant left at about 2:00 A.M. on October 22nd, each of the detectives also left, headed in the direction of the District of Columbia on Palmer Highway. By prearrangement, a uniformed officer in a marked patrol car stopped appellant in the Palmer Park area, parking the police car behind appellant's, at the curb. As the officer stepped out of the patrol car, Detective Howard slowly passed, and parked in front of appellant. Detective Lew turned up a side road, and parked at a garage or repair shop, facing the parked cars, about 75 feet away. He watched through binoculars. He said that the uniformed officer held conversation with appellant. They went to the rear of appellant's vehicle, and the officer went back to his cruiser and bent over the seat. Detective Lew saw the appellant reach into the chest area of his shirt and deposit something on the ground. The detective then walked to that point, and with the aid of a flashlight, saw four aluminum foils at the rear of appellant's car near the sewer grate. Detective Howard picked them up, made a field test and then advised appellant that he was under arrest for possession of heroin.

Detective Howard testified that as he passed appellant's car just before parking in front of it he noticed appellant leaning forward next to the steering wheel. As appellant was walking to the back of his car with the uniformed officer, Detective Howard looked under the dashboard and under the front seat of the car, but found nothing.

Adam Sobotka, a chemist with the U. S. Bureau of Narcotics, received the four foils for analysis. Each contained white powder. He made eight individual tests of various types on the contents of each foil. The analysis showed that each contained heroin. He did not attempt to determine what percentage of the total contents of each foil was heroin. He said five micrograms of heroin was the minimum quantity that would give a positive test. Custody of the evidence from the time it was picked up until it was received in evidence was shown, and is not questioned here.

Appellant contends:

1. That it was error not to suppress the evidence.

2. That it was error to allow the conviction without testimony whether the substance found was a controlled dangerous substance.

3. That it was error to allow the conviction under a law which requires that it be liberally construed, in violation of the rule that all criminal laws are to be strictly construed.

1.

Maryland, Rule 729 sets forth the procedure for determining, either before or at trial, the admissibility as evidence of property claimed to have been obtained by an unlawful search or seizure. The question may be raised by filing a pretrial motion (paragraph b.), but failure to file a pretrial motion does not constitute a waiver of the right to object at the trial (paragraph c.). When the objection is made by oral motion at the trial, as it was here, it is left to the discretion of the court to determine the question as a preliminary matter, or during the trial. In either case, if the trial is before a jury, the hearing on the motion or objection shall be out of the presence of the jury (paragraph d. 2).

Paragraph f. provides that if the ruling is adverse to the accused, his objection to the evidence shall be preserved on appeal, even though no further objection was made to the introduction of such evidence at the trial, and paragraph e. requires that all evidence proffered or submitted in support of or in opposition to such motion, petition or objection shall be included as a part of the record on appeal.

No new objection was made on the ground of unlawful seizure when the foil containers were received in evidence, and none was necessary.

The application and effect of Maryland Rule 729 were extensively discussed in Winebrenner v. State, 6 Md.App. 440, 251 A.2d 610, Price v. State, 7 Md.App. 131, 254 A.2d 219, and Cleveland v. State, 8 Md.App. 204 259 A.2d 73. It was made clear that the admissibility of the evidence is a matter exclusively for the court, apart from the question of guilt or innocence.

In Winebrenner, supra, we said, 6 Md.App. at page 444, 251 A.2d at page 612:

'The trial should be conducted so as to reflect clearly what testimony and other evidence was received on the issue of the admissibility of the challenged evidence and the ruling of the trial judge as to the legality of the arrest, the reasonableness of the search and seizure and the admissibility of the challenged evidence should be stated by him.'

Thus it is that we limit our appellate review to consideration of the evidence that was submitted to the trial judge in the separate hearing, out of the presence of the jury, on the motion to suppress the property as evidence or the objection to its admissibility. That some of the same evidence, and more, was presented to the jury in the trial of the issue of guilt, does not mean that we consider more evidence than that which was before the trial judge on the question of admissibility.

Appellant says in his brief:

'It is clear that the arrest and intent to arrest preceded the search of the area surrounding the Appellant. The search and its product having been the result of an illegal arrest, the separate arrest if deemed such, for a narcotics offense cannot be justified by the incriminating product of the tainted search.'

The evidence at the hearing on the issue merely showed that appellant was stopped by a uniformed police officer, who asked for his registration and driver's permit. Appellant said he was not told that he was being arrested. Such a stop and examination were lawful under Code, Art. 66 1/2, §§ 31 and 97. In Taylor v. State, 9 Md.App. 402, 264 A.2d 870, we said that the applicability of these statutes does not depend upon whether the operator has committed some traffic or other violation of law, and further said that the appellant there was not placed in an arrest status solely because the officer sought to verify these documents.

The Court of Appeals has built a working definition of arrest, set out in Cornish v. State, 215 Md. 64, 137 A.2d 170, as 'the detention of a known or suspected offender for the purpose of prosecuting him for a crime.' See also Shorey v. Warden, 401 F.2d 474 (CA 4 1968), Shipley v. State, 243 Md. 262, 220 A.2d 585, Duffy v. State, 243 Md. 425, 221 A.2d 653.

We deem it clear that appellant was not placed under arrest until after the questioned evidence was found by the detectives on the ground, and that it was not discovered there as the result of a search, but because appellant was seent to throw it there.

One who abandons or discards property cannot complain with effect of the later seizure of such property by the police, or of its use against him in court. Jones v. State, 5 Md.App. 180, 245 A.2d 897, Boone v. State, 2 Md.App. 479, 235 A.2d 567, English v. State, 8 Md.App. 330, 259 A.2d 822.

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