Mason v. Wrightson

• Decision Date: 16 November 1954
• Docket Number: No. 18,18
• Citation: 109 A.2d 128,205 Md. 481
• Parties: David T. MASON v. Sgt. Charles WRIGHTSON.
• Court: Maryland Court of Appeals

Page 481

205 Md. 481

109 A.2d 128

David T. MASON v. Sgt. Charles WRIGHTSON.

No. 18.

Court of Appeals of Maryland.

Nov. 16, 1954.

Benjamin H. Foreman, Jr., W. A. C. Hughes, Jr., Baltimore, for appellant.

J. Kemp Bartlett, III, Robert D. Bartlett, Baltimore, for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

BRUNE, Chief Judge.

The appellant brought a suit in tort in the Superior Court of Baltimore City against the appellee, a sergeant of the Baltimore City Police Department, for assault and battery and false imprisonment. A jury trial was waived and the case was tried before the Court without a jury. Substantial damages were claimed, but there was no proof of pecuniary loss to the appellant. The trial judge took the view that no actual damage to the plaintiff was established and that any wrong done him was at most a technical wrong; and sitting without a jury, the judge then found a verdict for the defendant upon which judgment was entered. This appeal is from that judgment.

Early in January, 1953, there were a number of serious crimes in Baltimore City, including hold-ups and similar offenses committed by persons armed with deadly weapons, such as pistols or knives. To combat this lawlessness, the Commissioner of Police of Baltimore City issued a general order that the police: 'Search for possession of dangerous weapons on all persons coming under police suspicion.' The Captain in command of the Northwestern District, to which District the appellee was attached, issued a written order to his subordinates to carry out the Commissioner's order. As a result, during the months of January and February, 1953, one hundred and twenty-nine taverns in that District were entered by the police and the male patrons were 'frisked' or (as euphemistically described) 'patted down' in a search for concealed weapons. One of the taverns was a night club known as the Club Tiajuana, on Pennsylvania Avenue. The appellee, in company with several other police officers, entered it at about 1:30 a. m. on Sunday, February 15, 1953. They first informed the manager of what they were going to do, and it was then announced that the male patrons would be 'frisked' for concealed weapons.

The appellant, who is an attorney, was seated at a table with four of his friends, two men and two women. An officer came to their table and searched or 'patted down' the other two men without apparent objection on their part, but the appellant refused to submit to the 'frisking'. The officer then called the appellee, Sergeant Wrightson, who was in charge of the police squad, and informed him of the appellant's unwillingness to be searched. Sergeant Wrightson then told the appellant to stand up and be searched. Appellant arose from his chair, but informed Sergeant Wrightson that he did not consent to be searched because there was no legal basis for the search. The appellant also informed the Sergeant that he was an attorney and knew most of the people present and saw no need to search them for concealed weapons. The appellant was then searched by Sergeant Wrightson without his consent.

The testimony shows that there was no disorder in the Club Tiajuana, that no crime had ever been committed there, that there had never been any occasion in the history of this establishment requiring the assistance of the police, and that no concealed weapons were found on any of the patrons of the Club at this time.

Appellant contends that he was humiliated and that he has been damaged as a result of an illegal search.

The first question for decision is whether the search of his person for concealed weapons was in derogation of his rights.

The Fourth Amendment to the Constitution of the United States, which prohibits unreasonable searches and seizures, is not applicable here since it is a limitation upon the Federal government and not upon the State government. Griffin v. State, 200 Md. 569, 572, 92 A.2d 743, 745; Lambert v. State, 196 Md. 57, 62, 75 A.2d 327, 329; State ex rel. Beard v. Warden of Md. House of Correction, 193 Md. 715, 718, 67 A.2d 236.

Article 26 of the Maryland Declaration of Rights provides: 'That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted.'

It may be conceded that this Article has no direct application in this case because the officers who conducted the search had no warrant at all, but this does not help the appellee's position. Certainly the general order of the Police Commissioner was not a search warrant. As was said in Miller v. State, 174 Md. 362, 373, 198 A. 710, 716: 'If a general search warrant is condemned, how much more obnoxious must be an authorization to conduct a general and indiscriminate search of persons and property without any warrant.'

An officer may make an arrest without a warrant when a misdemeanor is committed in his presence, Heyward v. State, 161 Md. 685, 158 A. 897; Blager v. State, 162 Md. 664, 161 A. 1; Callahan v. State, 163 Md. 298, 162 A. 856; or 'may arrest without warrant whenever he has reasonable grounds to suspect that a felony has been committed'. Brish v. Carter, 98 Md. 445, 449, 57 A. 210, 211. Also, after a lawful arrest is made the officer as an incident thereto may search the offender and seize any evidence of the crime. Carroll v. U. S., 267 U.S. 132, 45 S.Ct 280, 69 L.Ed. 543; Agnello v. U. S., 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145; Callahan v. State, 163 Md. 298, 162 A. 856. None of these well established justifications for a search is present in this case, nor, we think, did the appellant consent to be searched. The search under such circumstances constituted both an assault (and battery) and false imprisonment. See the definitions of assault and of assault and battery in the Restatement, Torts, Sections 21 and 18. As to false imprisonment, see Mahan v. Adam, 144 Md. 355, 365, 124 A. 901, 904, in which this Court defined it as '* * * the unlawful restraint by one...