Middleton v. State

• Decision Date: 16 July 1970
• Docket Number: No. 276,276
• Citation: 10 Md.App. 18,267 A.2d 759
• Parties: Arthur Leroy MIDDLETON, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 18

10 Md.App. 18

267 A.2d 759

Arthur Leroy MIDDLETON, Jr. v. STATE of Maryland.

No. 276.

Court of Special Appeals of Maryland.

July 16, 1970.

Certiorari Denied Sept. 21, 1970.

Frank Sacks, Baltimore City, for appellant.

Francis X. Pugh, Asst. Atty. Gen., with whom were Francis B. Buch, Atty. Gen., Samuel A. Green, Jr., States Atty. for Baltimore County, Charles E. Moylan, Jr., State's Atty. for Baltimore City, and I. Elliott Goldberg, Asst. State's Atty., on brief, for appellee.

Argued before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

MURPHY, Chief Judge.

Appellant was convicted at a court trial of (1) breaking the storehouse of Charles Wagner (the Arcade Pharmacy) on August 15, 1967 and stealing therefrom goods of a value of $5.00 or more and grand larceny of such goods; (2) armed robbery of Raymond Morstein (the Ansell Pharmacy) on March 4, 1968; (3) possession and control of prohibited narcotic drugs on March 6, 1968, and (4) unlawfully carrying a gun on March 6, 1968 in a motor vehicle in violation of Baltimore City Ordinance. He was sentenced to ten years on the storehousebreaking charge and to fifteen years consecutive on the armed robbery conviction. Sentence was suspended on the other offenses. On appeal, it is contended-as to the armed robbery and storehousebreaking and stealing convictions-that evidence was unlawfully seized in violation of the Fourth Amendment to the Federal Constitution and improperly introduced over appellant's objection at the trial. Appellant also contends that the evidence was legally insufficient to support any of the convictions.

Evidence was adduced at the hearing on appellant's pretrial motion to suppress which showed that at 1:17 a.m. on August 23, 1967, in Wilmington, Delaware, Patrolman Edward Carter received a call to investigate a burglary in progress at a restaurant in an 'all Negro' area of the City. Upon arrival at the scene, Carter observed a car bearing Maryland license plates parked at the curb in front of the restaurant. It appeared to be unoccupied. Carter's investigation at the restaurant indicated that no burglary had been committed. As he was leaving the area he observed 'movement' in the parked car and saw a white person 'sit up' in the vehicle. Upon Carter's request, the person in the car identified himself by name as the appellant. Carter 'glanced' through the open window of the vehicle and observed a gun butt protruding from the ashtray on the deashboard. He told appellant to get out of the car; appellant grabbed the gun, put his finger on the trigger and pointed it toward the officer. Carter drew his own gun. Appellant then submitted to arrest and gave the officer his gun, which was fully loaded. Two police sergeants responded to the scene to assist Carter and when they told appellant they were going to search his car for other weapons, he 'dove' back into the vehicle and attempted to lock the doors. It was necessary to physically restrain appellant and he was thereafter handcuffed. At this time, a scream was heard to emanate from around the corner and all of the officers except Carter went to investigate. ¹ Upon their return some twenty minutes later, appellant's car was removed to the police station two blocks away where it was immediately searched. A fully loaded gun, ammunition, and a dagger were found secreted in the vehicle, together with a number of items which, when described over the police teletype network, Baltimore City Police reported had been stolen from the Arcade Pharmacy on August 15, 1967.

Detective Joseph Folio of the Baltimore City Police Department obtained a warrant for appellant's arrest on August 23, 1967 and filed a detainer with the Wilmington authorities. Appellant was released on bail for the Wilmington offense on February 23, 1968, the bail having been provided by Mrs. Geneva Woods of Baltimore in the form of a property bond pledging her Baltimore home as security. The Baltimore police were not notified of appellant's release.

On March 4, 1968, Mrs. Woods contacted Detective Folio and informed him that appellant and James Galliard were staying at her home in Baltimore; that appellant was renting the basement apartment from her; and that he and Galliard had loaded guns and were driving a stolen 1968 white Plymouth bearing South Carolina license plates, the tag number of which she specified. Mrs. Woods told Folio that she was angry with appellant and wanted him arrested because she was fearful that he would jump his Wilmington bail. Folio immediately contacted the South Carolina police and was informed that the car had been rented by one Edward Fainberg, but not returned, and that there was a warrant outstanding for Fainberg's arrest. Folio obtained a copy of the warrant on March 5. Investigation revealed that Fainberg's credit card, which was used to rent the car, had been stolen in a burglary of Fainberg's Pharmacy in Baltimore.

During appellant's absence from her home on March 5, Mrs. Woods took Folio into appellant's basement apartment, and showed him two loaded guns in one of his suitcases. She refused to permit Folio to take the guns at that time.

A police stake-out of the Woods home was thereafter initiated. At approximately 8:00 p. m. on March 6, the police observed a 1968 white Plymouth containing two male subjects, believed to be appellant and Galliard, stop in the alley in the rear of the Woods home and enter the house. As the police began to converge on the house, the men came out, saw the officers, and then ran back into the house. By this time, twenty-five officers had arrived on the scene and the Woods house was flooded by searchlights. The officers observed a light go on in the second floor bedroom of the house. They observed the curtains being pulled back and someone peek out. It appeared to the officers that two men were in the room and that one of them was standing on something. The police ordered that the men surrender. With hands up, appellant and Galliard emerged from the house and submitted to arrest. Investigation revealed that there were no other males in the Woods house.

Immediately after appellant and Galliard had been removed to police headquarters, the officers undertook a search of the stolen Plymouth in the alley. The search uncovered a number of loaded weapons and other items, including narcotics and narcotic paraphernalia, which had been taken during a robbery at the Ansell Pharmacy on March 4, 1968. Also found in the car were various credit cards belonging to Edward Fainberg, personal papers addressed to appellant, and a key to a room at the New Motel in Baltimore. The Woods home was also promptly searched. One of the officers who had observed the pre-arrest activity in the second floor bedroom went to that room and noted that the 'something' he had seen one of the men standing on was a bed. Searching the area, the officer discovered two loaded guns in the bedroom's attic rafters. Another officer found a set of car keys belonging to the stolen Plymouth secreted in a chair located on the first floor of the Woods home. Folio went to appellant's basement apartment and seized the suitcase containing the loaded guns.

Mrs. Woods testified on appellant's behalf at the hearing on the motion to suppress. She stated that she did not give police permission to search her house following appellant's arrest and that they did so over her objection. She testified that she observed Galliard hiding things on the second floor on March 6; that it was she, and not appellant or Galliard, who stood on the bed and hid one gun in the rafters, and that this was a gun she had taken from appellant. She stated that appellant was permitted access to the kitchen and first floor of her house, but not the second floor bedrooms. Mrs. Woods admitted that appellant was her boyfriend.

Appellant testified at the hearing on his motion to suppress and denied arriving at the Woods home in the stolen Plymouth; he denied any and all connection with the stolen Plymouth, or with the articles found therein. He denied that his suitcases contained guns; he also denied giving Mrs. Woods the gun which she claimed she hid for him on March 6.

Folio testified that Mrs. Woods ordered the police from her house after the search was made and not before. He did not think a search warrant necessary because Mrs. Woods had herself initiated the investigation as she wanted appellant apprehended.

The Legality of the Car Search in Wilmington

During trial appellant conceded that the Wilmington police had probable cause to arrest him for a misdemeanor committed in their presence. He further conceded at trial that the police could have made a warrantless search of his car at the scene of the arrest. But since they did not, he claimed on authority of Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, that the search of his vehicle without a search warrant made thirty minutes later at the police station was not contemporaneous with the arrest either in time or place and, consequently, was not valid as being incident to the arrest. The trial judge held in effect that the circumstances were such that the search was substantially contemporaneous with the arrest and was lawful as incident to it. Appellant advances the same argument on appeal as he did below, although he now suggests that the arrest may have been unlawful. We think the appellant is bound by his trial concession that the arrest was lawful under Delaware law and we proceed to a determination of the validity of the car search on this foundation.

We have held that while ordinarily a search of a motor vehicle can be incident to arrest only if it is made substantially contemporaneous therewith, and is confined to the immediate vicinity of the arrest, in some circumstances a search may be deemed incident to an arrest, although not conducted at the scene thereof, when it is made with reasonable promptness at a police station to which...