July v. State
| Decision Date | 25 March 1969 |
| Docket Number | No. 299,299 |
| Citation | 251 A.2d 384,6 Md.App. 409 |
| Parties | Harold Clifton JULY v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Robert J. Colborn, Jr., Upper Marlboro, for appellant.
John J. Garrity, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall and Robert J. Woods, State's Atty. and Asst. State's Atty. for Prince George's County respectively, on the brief, for appellee.
Before MURPHY, C. J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.
The appellant, a juvenile at the time he raped an 82 year old widow and burglarized the dwelling in which she resided alone, claims that his convictions should be reversed and his sentences totaling 30 years set aside because a card on which the police had rolled an inked impression of his fingerprints was admitted in evidence in error. 1 The sole ground for the allegation of error is that his arrest was unlawful and that the fingerprints were illegal fruit of the arrest, inadmissible under the principles enumerated in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.
In Hall v. State, 233 Md. 378, 382, 196 A.2d 874, 876 the Court of Appeals said:
The appellant in Hall did not challenge this nor does the appellant here; it is still the law of this State. See Hall v. Warden, Md. Penitentiary, 244 Md. 731, 225 A.2d 273.
In the instant case there was evidence on the issue of the legality of the arrest from which the lower court could properly find that the police had received a report of the crimes and a description of the felons. One of the officers receiving the report, leaving two officers to continue the investigation at the scene, left to search for the participants. He shortly returned and said he saw youths answering the description of the perpetrators in a bowling alley. He and Corporal Yorke Flynn went to the bowling alley. Flynn looked them over and accosted them, told them that a crime had been committed, that the clothing they wore answered the general description of the perpetrators and asked if they would come back to the scene. The officer recovered the gun and arrested July, the appellant. We state that Flynn arrested the appellant because we think it clear that from this point the appellant was under arrest. Flynn testified that the appellant got in the car, that had the appellant or his companion asked to get out of the car after the gun was dropped he would not have let them out and that the appellant was under arrest 'after he dropped the gun'. He did not tell him that he was then under arrest 'but if he had wanted to go after he dropped the gun I wouldn't have let him go'. He took them back to the scene of the crime, Detective James Fitzpatrick arrived and Flynn turned them over to him. Flynn then went into the house and later took them to the police station. Apparently Detective Fitzpatrick was not then aware of what had occurred in the presence of Flynn. He testified that he arrested them, under the impression that the appellant had not been arrested. He said, however, that the gun 'was turned over to me that had been dropped by the Defendant Harold July'. That Flynn did not tell the appellant he was under arrest at the time the gun was dropped was not material nor was the fact that Fitzpatrick may have again 'arrested' him. There is no formal ritual which must be observed to constitute an arrest. The appellant's liberty was restrained from the moment he dropped the gun and he was thereafter in custody.
The rule is that a warrantless arrest is valid where an officer has probable cause to believe that a misdemeanor has been or is being committed in his presence or view, and that the arrestee is the misdemeanant. Salmon v. State, 2 Md.App. 513, 522, 235 A.2d 758. Carrying a concealed weapon is a misdemeanor. Md.Code, Art. 27, § 36. When the appellant dropped the weapon, which had been unobserved by the officer until it was dropped, he had probable cause to believe that the appellant, in the officer's presence had been carrying it concealed. Thus the arrest was valid. Ramsey v. State, 5 Md.App. 563, 248 A.2d 659; Crosby v. State, 2 Md.App. 578, 236 A.2d 33. The arrest being valid, the appellant was in lawful custody at the time of the taking of his fingerprints, and they were properly admitted in evidence.
We think it advisable to note that the Federal Constitution's Fifth Amendment privilege against self incrimination offers no protection against compulsion to submit to fingerprinting. It protects a person only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature. Compulsion which makes a suspect or accused the source of 'real of physical evidence' does not violate it. Fingerprinting, photographing, measurements, speaking or writing for identification, appearing in court, assuming a stance, walking or making a particular gesture, for example, are 'real or physical evidence.' Schmerber v. California, 684 U.S. 757, 760-765, 86 S.Ct. 1826, 16 L.Ed.2d 908. Nor do we think that fingerprinting of an accused is per se a denial of due process of law. Even the obtaining of evidence by intrusions in the human body, as by the withdrawal of blood, (the obtaining of fingerprints is no such intrusion) when done by acceptable means and under proper circumstances, does not offend that 'sense of justice' of which the Supreme Court spoke in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183. Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448. In Schmerber, at 760, 86 S.Ct. at 1830, the Court said that Breithaupt 'requires the rejection of petitioner's due process argument.'...
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