Johnson v. State
| Decision Date | 24 November 1969 |
| Docket Number | No. 120,120 |
| Citation | 8 Md.App. 187,259 A.2d 97 |
| Parties | Wilbur Allen JOHNSON v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
John D. Hackett, Baltimore, with Donald Daneman, Baltimore, on the brief, for appellant.
Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., and Josef F. Rosenblatt, State's Atty., and Asst. State's Atty., for Baltimore City, on the brief for appellee.
Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.
Appellant Wilbur Allen Johnson was convicted of possession of narcotics and possession of an unconventional lottery slip by the court sitting without a jury and sentenced to five years imprisonment for the narcotics charge and six months imprisonment for the lottery charge, the sentences to be concurrent and to run consecutive to a ten-year sentence received in another case. On this appeal appellant claims that he was illegally arrested and that, consequently, the narcotics seized from his person at that time should not have been admitted into evidence because the search was not incident to a lawful arrest, nor was it a proper frisk for weapons.
At approximately 1:30 p.m. on February 6, 1968, Detective Milton Spencer, a plain-clothes member of the Vice Squad with nine years experience in lottery operations, entered Max's Pool Room in Baltimore to make a 'routine inspection.' Spencer testified that Spencer further testified that appellant * * *' The following colloquy then occurred:
'Q. (State's Attorney) * * * Now, in your opinion, as an expert in lottery what do those numbers, which you have read out to the court, as written on that brown paper bag, represent?
A. (Detective Spencer) It appears he was combinating 960, and, he had done it in its five phases. And, there is one more he could have written; and, of course, I stopped him and went back to the top this time.'
No other numbers were found on the bag, On cross-examination, Detective Spencer testified with reference to the appellant that 'I have seen him around, and until this occurred I did not know his name'; that appellant was standing in the pool room by himself; and that after he arrested appellant, he searched his right coat pocket and found fifty gelatin capsules of cocaine hydrochloride, seventy-one gelatin capsules containing heroin hydrochloride, and $201 in cash. Appellant was then taken to police headquarters where he was examined and found to have 'needle and track marks on both arms too numerous to count.' At that time appellant admitted to a daily dose of 60 to 70 capsules of narcotics.
Testifying on his own behalf, appellant admitted that he had been using drugs for twenty-five years but claimed that he was not an addict. He stated that he was a gambler, that he had not worked in the last three years, and that he was familiar with lottery numbers. He claimed that he picked up the bag from the poolroom floor to write down a telephone number; that 'there was four telephones around the wall, and I was going to call somebody back later'; that he couldn't remember seeing the numbers on the bag; that he was in the process of tearing the bag to write the number down when he was approached by Detective Spencer; that 'everybody knows that I don't write no numbers'; and that '(i)f I was going to play like the officer made a statement about 960 combination, why would I put five numbers down and put the whole six, wouldn't have to; give it to a number writer and just say, give me 96 for a combination.'
It is, of course, elementary that a warrantless arrest is valid where the arresting police officer has probable cause to believe that a misdemeanor has been or is being committed in his presence and that the arrestee is the misdemeanant. Winebrenner v. State, 6 Md.App. 440, 251 A.2d 610; Robinson v. State, 4 Md.App. 515, 243 A.2d 879; Salmon v. State, 2 Md.App. 513, 235 A.2d 758. In determining whether a misdemeanor has been committed in the officer's presence the term 'presence' denotes that the commission of the misdemeanor is perceptible to the officer's senses, whether they be visual, auditory, or olfactory. Davids v. State, 208 Md. 377, 118 A.2d 636; Ramsey v....
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