Mobley v. State

• Decision Date: 29 October 1973
• Docket Number: No. 32,32
• Citation: 270 Md. 76,310 A.2d 803
• Parties: Donald Eugene MOBLEY and Marvin King v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 76

270 Md. 76

310 A.2d 803

Donald Eugene MOBLEY and Marvin King v. STATE of Maryland.

No. 32.

Court of Appeals of Maryland.

Oct. 29, 1973.

William A. Hahn, Jr., Pikesville, for Donald Eugene Mobley.

Mark. P. Hanley, Jr., Assigned Public Defender, Towson, for Marvin King.

Josef E. Rosenblatt, Asst. Atty., Gen. (Francis B. Burch, Atty. Gen., Edward F. Borgerding, Asst. Atty. Gen., Baltimore, Samuel A. Green, Jr., State's Atty., and Severn A. Lanier, Asst. State's Atty., for Baltimore County, Towson, on the brief), for appellee.

Argued before MURPHY, C. J., and BARNES, McWILLIAMS, SINGLEY, SMITH, DIGGES and LEVINE, JJ.

MURPHY, Chief Judge.

The appellant were convicted at a court trial of robbery with a deadly weapon and each was sentenced to eighteen years imprisonment. In King and Mobley v. State, 16 Md.App. 546, 298 A.2d 446 (1973), the Court of Special Appeals affirmed the convictions in a characteristically lucid and detailed opinion written for the court by Judge Moylan. We granted certiorari to review, in light of Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) and Collidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the constitutionality of the warrantless search of the automobile in which appellants were intercepted by the police shortly after the crime was committed.

On December 20, 1971, between 6:00 and 6:15 P.M., two male negro youths held up Eva Akers at gun point in her Sparrows Point store, taking $95.00 from the cash register. Within a few minutes after the crime was committed, Officer Stephen Lucas arrived on the scene and obtained descriptions of the robbers from Mrs. Akers which he immediately broadcast over his police radio. The two negro males were described by Lucas as being between twenty-four and twenty-five years of age, one heavy, wearing a green army fatigue jacket; the other, thinly built, wearing a three-quarter length suede coat. Lucas obtained additional information from unidentified sources at the scene of the crime and a few minutes after his first transmission, put out a second broadcast giving a further description of the robbers and of an automobile.

Officer Leonard Malinowski, on patrol in the general area in which the crime was committed, heard a call over his police car radio between 6:15 and 6:30 P.M. to be the lookout for a yellow and black Duster; 'That the subjects in this car were believed to have just committed a robbery.' Officer Robert Hafer, also patrolling in the area, heard both broadcasts over his police radio between 6:15 and 6:21 P.M., the information he received being that there had been an armed robbery at the Sparrows Point store; that one of the robbers was a 'colored male approximately in his early twenties, approximately 5-foot-5 to 5-foot-7, heavy build, wearing an army fatigue jacket; the other subject wanted was also a colored male, early twenties, thin build, tall, and had a brown what they call suede three-quarter length car coat.' The description of the 'subjects wanted in the auto' was followed by a description of the vehicle as a Duster, yellow in color, with a black top, and that 'it should be occupied by two or three colored male subjects.'

Since all traffic outbound from Sparrows Point (a peninsula) had to pass over one of three bridges, Malinowski and Haffer each immediately moved to so-called 'holdup positions' commanding a view of all exiting traffic. Within a matter of seconds after the second broadcast had been transmitted, the officers separately observed a Dodge Coronet, yellow in color, with a black top, occupied by three negro males, moving over the bridge away from Sparrows Point. The officers separately pursued the vehicle. Hafer stopped it, Malinowski arriving on the scene a minute or so thereafter. The three men were ordered from the car. Lancy Cash, the owner and driver of the car, was wearing a three-quarter length brown coat. Appellant King was wearing a green army- type coat and appellant Mobley was wearing a blue jacket and blue gabardine pants. The three men were searched for firearms and a quick preliminary search was made of the interior of the vehicle. No incriminating evidence was found. The officers ordered the three men to drive their car to the police station; they did so, escorted by two police cars, one in front and one behind the appellants' vehicle. In this manner, as the officers testified, appellants 'were taken' or 'transported' to the police station where they were placed in different rooms. Their car was again searched, and a gun and $115 were found secreted in a console in the front seat. This incriminating evidence was introduced at the trial over appellants' objection that the search of the vehicle violated their Fourth Amendment right against unreasonable searches and seizures.

The Court of Special Appeals concluded cluded that the only theory that could legitimate the warrantless search of the appellants' vehicle was the so-called 'automobile exception' to the search warrant requirement first established in 1925 by Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. Under that exception, a motor vehicle, unlike a home, may be searched without a warrant or previous arrest under appropriate circumstances when the officer has probable cause in the constitutional context to believe that the vehicle contains the fruits, instrumentalities, or other evidence of a crime. See, Dyke v. Taylor Implement Mfg. Co., Inc., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151 (1938); Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629 (1931); United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927). Since the rule is justified on the basis that an automobile is so readily movable as to make impracticable the obtaining of a search warrant, the existence of exigent circumstances must be shown in addition to probable cause to validate the warrantless search. Coolidge v. New Hampshire, supra; Chambers v. Maroney, supra. We recognized and applied the doctrine in Peal v. State, 232 Md. 329, 193 A.2d 53 (1963).

Probable cause to conduct a warrantless search of an automobile under Carroll and its progeny exists in the constitutional sense when the facts and circumstances within the officer's knowledge, and of which he had reasonably trustworthy information, are such as would warrant a man of reasonable caution in believing that the vehicle contained articles lawfully subject to seizure. See, Duffy v. State, 243 Md. 425, 221 A.2d 653 (1966); Edwardsen v. State, 243 Md. 131, 220 A.2d 547 (1966); Young v. State,234 Md. 125, 198 A.2d 91 (1964). The rule of probable cause is a non-technical conception of a reasonable ground for belief of guilt, requiring less evidence for such belief than would justify conviction, but more evidence than that which would arouse a mere suspicion. Gilmore v. State, 263 Md. 268, 283 A.2d 371 (1971); Sterling v. State, 248 Md. 240, 235 A.2d 711 (1967); Graham v. State, 239 Md. 521, 212 A.2d 287 (1965); Mulcahy v. State, 221 Md. 413, 158 A.2d 80 (1960). To satisfy the probable cause requirement, therefore, an officer is not required to have actual knowledge that the vehicle contains fruits, instrumentalities, or other evidence of a crime at the time he undertakes his warrantless search. '. . . only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause . . ..' Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969). Of course, whether probable cause is shown to exist may be measured in terms of the collective information demonstrated by the record to be within the possession of the entire police team. Hopkins v. State, 239 Md. 517, 211 A.2d 831 (1965); Mercer v. State, 237 Md. 479, 206 A.2d 797 (1965); Farrow v. State, 233 Md. 526, 197 A.2d 434 (1964).

The Court of Special Appeals agreed with the trial judge that probable cause existed for the officers to believe that the car in which appellants were riding contained evidence of the armed robbery of Mrs. Akers. It noted that the car matched the color description of the suspected vehicle contained in the police lookout-a yellow car with a black top; that the perpetrators of the crime were known to be negro males in their early twenties and that the vehicle was occupied by three negro males in that age bracket, one of whom was wearing a distinctive jacket matching the description given in the lookout; and that the car was leaving the Sparrows Point area by the only available exit route, being stopped at a point approximately three miles from the scene of the crime, within a range of six to ten minutes after the crime had been committed. ¹

We think the record in this case contains evidence plainly supporting a finding of probable cause for the belief of the two officers, acting independently of each other, that the car each observed was the vehicle involved in the Akers robbery, and that it contained evidence of that crime. That the yellow car with a black top described in the police lookout was a Coronet, and not a Duster, is undoubtedly a negative factor in our assessment of the existence of probable cause; but it is not, in our view, a factor of such prominence as would override and negate the reasonableness of the officers' belief, based on all the information in their possession, that the vehicle they stopped was that described over the police radio. And we note that the clothing worn by two of the car's occupants (and not one, as indicated in the opinion of the Court of Special Appeals) matched the description in the police lookout-a green army jacket and a three-quarter length brown or suede coat.

In Jones v. State, 242 Md. 95, 218 A.2d 7 (1966), the police lookout immediately following a robbery in the Silver...