Gray v. State

Decision Date14 December 1977
Docket NumberNo. 384,384
Citation380 A.2d 1071,38 Md.App. 343
PartiesBruce GRAY v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Mark Colvin, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender on the brief, for appellant.

W. Timothy Finan, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William A. Swisher, State's Atty. and M. Samuel Brave, Asst. State's Atty. for Baltimore City on the brief, for appellee.

Argued before THOMPSON, MELVIN and WILNER, JJ.

WILNER, Judge.

As a result of having "shoplifted" a set of glass tumblers worth $1.88, Bruce Gray was sentenced to eight years imprisonment. Lest one think this sentence somewhat harsh and disproportionate, we hasten to add that, at the time of his arrest, Mr. Gray had in his possession 70 bags of heroin; and it was for the possession of that amount of that substance that he was convicted and sentenced.

He complains in this appeal that (1) the trial court should have suppressed the heroin as evidence, (2) the court erred in requiring him to admit guilt of an unrelated crime, and (3) the evidence was insufficient to support his conviction. The first and third of these charges have no merit; the second is justified.

I. SUPPRESSION OF THE HEROIN

Prior to the commencement of trial, appellant moved to suppress evidence, to wit, the heroin, on the ground that it was obtained by the State by virtue of an unreasonable search and seizure. What happened, based on the evidence produced at a pre-trial suppression hearing, was this.

Glen Brooks was a commissioned special police officer employed by Reads Drug Stores. On the evening of October 1, 1976, he observed appellant enter the Reads store at the Mondawmin Shopping Center in Baltimore City, carrying two large and unmarked shopping bags. Noting that "we normally are skeptical of large bags coming into the store," Officer Brooks kept his eye on appellant while he was in the store. According to Brooks, appellant just browsed around for a while, but, at one point, stooped down and put a set of glasses into one of the shopping bags. Brooks said that he had an unobstructed view of this event. Appellant then hurriedly left the store, with the glasses in his bag, walking past the cash registers without paying for the merchandise.

Brooks followed appellant out of the store and stopped him about ten feet from the store. Appellant first denied having taken any glasses, and, when Brooks confronted him with the glasses in his bag and offered him the opportunity to pay for them, appellant claimed he had no money. At that point, appellant was placed under arrest for shoplifting and was promptly taken by Brooks to a storage room that was used also for detention.

In the "detention" room, Brooks conducted a "pat down," of appellant during the course of which he felt a "bulge" in appellant's right front pocket. He stated that although it "didn't appear to be a weapon-type bulge," he was not satisfied that appellant was unarmed until appellant had emptied his pockets. Specifically, he noted that merely because the "bulge" in appellant's pocket didn't feel like a weapon, "that didn't mean it wasn't a weapon." What it turned out to be was 70 individually wrapped bags of heroin.

Appellant's suppression argument rests on two bases. First, he claims that Officer Brooks had no probable cause to make the initial arrest. This, we find to be utterly frivolous in light of Brooks' testimony. Second, he contends that assuming, arguendo, the validity of the arrest, Brooks had no authority to conduct the type of search that produced the heroin. His argument here is that (i) the authority of a special policeman is derived from Md.Ann.Code, art. 41, § 64; (ii) that statute permits a special policeman to exercise police power only in connection with the care, custody, and protection of his employer's property; (iii) this means that the authority of a special policeman to conduct a search incident to an arrest is limited to a search for property belonging to his employer or (for his own protection) for weapons; (iv) he therefore has no authority to conduct a "general exploratory search" once he is satisfied that the accused is unarmed and any suspected stolen goods have been recovered; (v) any stolen goods had been recovered and Brooks had satisfied himself that appellant was unarmed before he discovered the heroin; ergo (vi) the "extended" search producing the heroin was unauthorized and therefore unlawful.

The simplest answer to this sophistic argument is that, according to his testimony at the suppression hearing, notwithstanding that the "bulge" was not soft and didn't appear to be a "weapon-type bulge," Brooks was not satisfied that appellant was unarmed until after he had emptied his pockets and the nature of the bulge was determined. Thus, even if Brooks' power to search was as limited as appellant urges, he still would have been authorized to conduct the search he did.

A more basic flaw in the argument is that it rests upon an entirely erroneous reading of the statute. Section 64 provides, in relevant part:

"Each person appointed under this subtitle as a special policeman is charged with the protection and preservation of peace and good order on the property described in the application for the commission. He has the power to arrest persons who trespass or commit offenses thereon. He has, and may exercise, the powers of a police officer upon the property described in the application for the commission and may exercise these powers in any county or city of the State in connection with the care, custody, and protection of other property of the requesting authority or other property, real or personal, for which it has assumed an obligation to maintain or protect." (Emphasis supplied.) 1

Appellant somehow reads the italicized part of the statute as supporting his claim that a special policeman's authority to conduct a search incident to a valid arrest is limited to the recovery of his employer's property. This is an unjustifiably strained interpretation, which is supported neither by logic nor legislative intent.

The italicized language is part of a sentence, and one must read the entire sentence to ascertain its meaning. The sentence gives a special policeman the powers of a police officer, and then describes where he may exercise those powers. First, he may exercise them on the property described in the application for his commission. 2 Second, he may exercise them any place in the State (i. e., away from particular property described in the application) but only "in connection with the care, custody, and protection of other property . . . for which (the employer) has assumed an obligation to maintain or protect."

It is not the police power itself that is limited, but only the circumstances under which it may be exercised off the particular property described in the application for the commission. So long as the special policeman is acting in connection with the care, custody, or protection of his employer's other property, he may exercise to the full the powers of a police officer; and that includes the same power to search incident to a valid arrest as is possessed by a regular police officer. This is abundantly clear from the legislative history of the statute, which is quite extensive.

Special policemen were first authorized in 1880, when the General Assembly authorized the Governor, upon application by a corporation owning or using a railroad, steamboat, canal, furnace, colliery, or rolling mill, to appoint persons "to act as policemen for the protection of the property of said corporation . . . and for the preservation of peace and good order on their respective premises, railroad trains or steamboats." 3 The Act provided that these special policemen,

"shall possess and exercise, in the counties and cities in which the railroads, canals, colleries, furnaces, rolling mills and premises of the corporation for which he may have been appointed are respectively situated, all the authority and powers held and exercised by constables at common law and under the statutes of this State, and also all the authority and powers conferred by law on policemen in the City of Baltimore."

The Court of Appeals had a number of occasions to construe this statute, primarily in the context of the extent to which the sponsor/employer was civilly liable to third parties for the acts of the special policemen employed by them. 4 What emerged from these cases was that special policemen had a dual identity, being primarily State officers but also agents of their sponsor/employer. When engaged in enforcing the criminal law, as distinct from the rules, regulations, or procedures of the "employer," their duty was held to be "the same as any other policeman or constable" and was exercisable in the counties in which the "employer's" premises were located. 5 From these cases, the Attorney General later concluded that "the power which a special officer exercises under authority of the subtitle is a power of government, not his employer. 6

Over the years, the General Assembly extended the provisions of the 1880 Act to the point that nearly any business establishment was able, by action of either the Governor or the Police Commissioner of Baltimore City, to employ special policemen. 7

Throughout the years these provisions were in effect, they were the subject of numerous opinions of the Attorney General. In fact, it was these opinions that, in a practical sense, determined the nature and scope of the special policeman's authority. 8 They addressed two principal questions: (1) what was the special policeman's authority while on his employer's property, and (2) what was his authority when off the employer's property?

With respect to the first question, Attorney General Finan concluded, in 1964:

"On the enumerated premises the authority to act as a police officer of the State is...

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