Mullaney v. State

• Decision Date: 09 October 1968
• Docket Number: No. 379,379
• Citation: 5 Md.App. 248,246 A.2d 291
• Parties: Theodore Sherman MULLANEY, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 248

5 Md.App. 248

246 A.2d 291

Theodore Sherman MULLANEY, Jr. v. STATE of Maryland.

No. 379.

Court of Special Appeals of Maryland.

Oct. 9, 1968.

Robert Eugene Smith, Towson, for appellant.

Fred Oken, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Samuel A. Green, Jr., E. Harrison Stone, Charles Foos, State's Atty. and Asst. State's Attys., for Baltimore County respectively, on brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

MURPHY, Chief Judge.

Appellant ws found guilty by a jury in the Circuit Court for Baltimore County of possession and control of narcotics (cannabis), and was sentenced by the court to five years under the jurisdiction of the Department of Correction. On this appeal he contends that the trial court erred when it denied his pretrial motion to suppress evidence seized at the time of his arrest, and in admitting such evidence over his objection at the trial.

I The Motion To Suppress Evidence

Appellant moved to suppress as evidence in the case approximately eight pounds of cannabis (marihuana) and other related tangible items seized at the time of his arrest, as well as certain incriminatory admissions which he made to the police shortly after his arrest. The motion was based on the ground that appellant had been unlawfully arrested and that the warrantless search of his room and person, and the taking of his oral statements were illegal as comprising the fruits of an illegal arrest in violation of the Fourth Amendment to the Federal Constitution.

A hearing was held on appellant's motion out of the presence of the jury, at which time Lieutenant Thomas Mitchell of the Baltimore County Police Bureau, Narcotics Squad, testified that at 9:30 p. m. on August 2, 1967, he 'received information' while at his home from Detective Kratsch of the Baltimore City Narcotics Squad, as the result of which he went to the Penn Motel in Baltimore County, arriving there at 10:00 p. m. ¹; that he there checked the register 'which verified some of the information that I had received from the City'; that he ascertained that appellant was registered in room #222 and that while he did not know him, he had his description as being a white male, twenty to twenty-two years old, 5 8 , 140 pounds, long brown hair and bearded; that he went to his room, knocked on the door and, after failing to receive an answer, he left and kept the room under surveillance; that fifteen minutes later, a person answering appellant's description, and two other men, entered room #222; that after waiting approximately fifteen minutes, he (Lieutenant Mitchell) and two other police officers, knocked on the door of appellant's room; that in response to an inquiry from within the room as to 'who was there,' he (Mitchell) said 'Tommy Carroll'; that one of the occupants of the room, later identified as Richard Mainolfi, then opened the door about eight to ten inches, at which time he (Mitchell) 'flashed' his identification card at Mainolfi, observing at the same time that the room was 'a one bedroom affair,' that a man was lying on a bed smoking a cigarette, 'his hands cupped around his face in such fashion where you would smoke a marihuana cigarette,' that three cigarettes were beside him on the bed 'rolled as a marihuana cigarette,' and that the room was 'full of smoke' which he (Mitchell) knew from his experience to be marihuana smoke; that Mainolfi tried to slam the door shut but he (Mitchell) put his 'foot in the door' and his 'face in the opening,' and also 'put some pressure on the door'; that thereafter Mainolfi 'permitted us entry'; and that they then seized from within the room a number of marihuana cigarette butts, a briefcase containing three blocks of marihuana kilo and another block of marihuana then being processed.

Lieutenant Mitchell had neither a search warrant nor an arrest warrant when he went to the motel. He testified on cross-examination that his purpose in stating that he was Tommy Carroll was 'to get them to open the door.' ² He further testified that he felt he had sufficient cause to enter the room based on 'the information and the specific way it was received by Detective Kratsch, and the description of the subject and the subject was there'; that he had 'the information and the detail of the information how it was secured from Detective Kratsch, whom I'm very familiar with and with whom I have worked on a lot of occasions, and he gave me this information'; and that he knew that Kratsch's information had been obtained from an informer of whose reliability he (Mitchell) had no knowledge.

The court denied appellant's motion to suppress, holding that the evidence indicated that Mitchell 'had received from Officer Kratsch information that the defendant was involved in transportation and possession of marihuana,' and that it was with 'that information at hand' that Mitchell went to the motel, having theretofore been provided with appellant's detailed description. The court ruled, alternately, that even if Lieutenant Mitchell did not have probable cause to arrest at the time he went to the motel, he thereafter acquired probable cause when the door was opened and he could see that marihuana was possessed by the occupants of the room.

The constitutional validity of the search and seizure manifestly depends upon the constitutional validity of appellant's arrest. And whether an arrest for a felony without a warrant is constitutionally valid necessarily turns upon whether, at the moment the arrest was made, the arresting officer or the police acting as a team had probable cause to make it-whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing a felony. ³ McCray v. State of Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62; Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; Farrow v. State, 233 Md. 526, 197 A.2d 434; Simms v. State, 4 Md.App. 160, 242 A.2d 185. Where, as here, the constitutional validity of the warrantless arrest was properly challenged by a pretrial motion to suppress evidence, it is the function of the court to determine for itself the persuasiveness of the facts relied upon by the police to show probable cause for the arrest-a function which it manifestly cannot perform unless it is informed of the facts upon which the arresting officer acted. See Beck v. State of Ohio, supra; Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503; Farrow v. State, supra; Edwardsen v. State, 231 Md. 332, 190 A.2d 84. Evidence to show the basis upon which the arresting officer acted in making the arrest, including the nature and details of information received from other law enforcement officers and/or informants, is not only relevant and admissible on the issue of probable cause, but must affirmatively be shown if the State is to carry its burden of proving the legality of the arrest. See Hopkins and Terry v. State, 239 Md. 517, 211 A.2d 831; Veihmeyer v. State, 3 Md.App. 702, 240 A.2d 649; Scott v. State, 3 Md.App. 429, 239 A.2d 771. Where the arrest is initiated on hearsay information received from an informant, the State, to establish its legality where challenged, must sufficiently inform the trial judge of some of the underlying circumstances from which the informant concluded that a crime was being or had been committed by the person to be arrested, and some of the underlying circumstances from which the police concluded that the informant, whose identity need not be disclosed, ⁴ was credible or his information reliable. McCray v. State of Illinois, supra; Beck v. State of Ohio, supra.

Thus, in Draper v. United States, supra, the Supreme Court held that in testing the sufficiency of probable cause for a warrantless arrest, the arresting officer may rely upon information received through an informant, rather than upon his direct observations, so long as the informer's statement is reasonably corroborated by other matters within the officer's knowledge. In that case, a 'special employee' of the Bureau of Narcotics (in reality a paid government informer), who had previously given reliable information, told federal agents that the defendant, whom he described, was peddling narcotics, and that he would be at a designated place on a designated date with a tan zipper bag and would be carrying narcotics. The defendant, being observed by federal agents under conditions which accorded precisely with this information, was arrested and the arrest was upheld solely upon the informant's detailed statement that the defendant was peddling narcotics, as corroborated by the fact that the informant's description of the defendant's appearance, and of where he would be at a particular time-matters in themselves totally innocuous-agreed with the arresting officer's observations (thus providing a substantial basis for crediting the hearsay).

In Beck v. State of Ohio, supra, the defendant was arrested without a warrant for violating the gambling laws. By pre-trial motion the defendant moved to suppress evidence seized from his person at the time of his arrest. To establish the legality of the arrest the State called the arresting officer as its sole witness. He testified that he had 'a police picture' of the defendant and 'knew what he looked like,' that he knew the defendant had 'a record in connection with clearing house and scheme of chance,' that he had 'information,' that he had 'heard reports,' that 'someone specifically did relate that information,' and that he 'knew who that person was.' The Supreme Court, in concluding that the State failed to establish probable cause for the arrest, held that there was 'nowhere in the record any indication of what 'information' or 'reports' the...