Radcliffe v. State

• Decision Date: 11 March 1969
• Docket Number: No. 247,247
• Citation: 251 A.2d 11,6 Md.App. 285
• Parties: Ronald RADCLIFFE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 285

6 Md.App. 285

251 A.2d 11

Ronald RADCLIFFE v. STATE of Maryland.

No. 247.

Court of Special Appeals of Maryland.

March 11, 1969.

[251 A.2d 12] Victor L. Crawford, Rockville, for appellant.

Bernard L. Silbert, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William A. Linthicum, Jr., Barry H. Helfand, State's Atty., and Asst. State's Atty. for Montgomery County, respectively, on brief for appellee.

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

ORTH, Judge.

Ronald Radcliffe, Michael Lee Hernandez and David John Vucci were charged by an information with being rogues and vagabonds. Radcliffe, the appellant on this appeal, separately tried at a court trial in the Circuit Court for Montgomery County, was found guilty and sentenced to 18 months. ¹ He contends

that a search and seizure of evidence incident to his arrest was unreasonable because his warrantless arrest was illegal and that the evidence was not sufficient to sustain his conviction.

THE FACTS

Detective-Sergeant Thomas Mosley, assigned to the Silver Spring Detective Bureau, Montgomery County Police, was the only witness testifying at the trial. He said that about 3:00 A.M. on 28 January 1967 he and Lt. John Shaw were on duty and had parked their car where they could observe the Georgian Motel in Silver Spring. He saw the appellant, Hernandez, Vucci and a girl come out of the motel and enter a green Mustang and drive off with the appellant at the wheel. He followed them. They went to the Drug Fair located at the corner of Colesville Road and Georgia Avenue where Vucci got out of the car and went into the store. When he came out and got back in the car he had a paper bag which appeared to contain 'some objects.' The Mustang went north on Georgia Avenue, turned left onto Viers Mill Road and then turned right onto Galt Street. The police lost the car for a time. When he saw the car a short time later, the appellant was still driving and Vucci and Hernandez were passengers. The Mustang went north on Rockville Pike to Mount Vernon Drive, turned left to the street that runs in the rear of Richard Montgomery High School, went down to Blandford Street and made a U-turn. The police drove past them and again lost the car. About five minutes later Mosley saw the car parked on the corner of Mercer Road and Mount Vernon Drive. The appellant was the only one in the car. The police drove around the block to the corner of Crotzer's Lane and Mercer Road, left their vehicle and carrying a portable radio, went to the rear of the houses 'in a position directly across from the car occupied by Ronald Radcliffe, the Mustang.' The police hid in the bushes and about 15 minutes later-'this was about a quarter to four in the morning'-Mosley saw Vucci and Hernandez running from the side of the houses, the rears of which 'back up' to the Richard Montgomery school. He had called for assistance and just prior to seeing Vucci and Hernandez running he saw a marked police car 'coming around' through the school property. Hernandez either had on or was carrying a white glove. The officer knew that neither Vucci nor Hernandez lived in the area. As they 'were just getting into the car', and the appellant was attempting to start it, Mosley yelled: 'Police; Stop. You are under arrest.' The dome light was on as the police ran to the car and Mosley saw a pair of white gloves 'on the floorboard between Hernandez's seat,' and 'on the passenger side of the front seat was a hammer and a pair of gloves.' Hernandez was searched and a chisel was found in his left front jacket pocket. A Drug Fair paper bag was lying under the seat where the appellant was sitting. It contained a pack of chisels and punches. A hammer was on the floorboard. At this point the appellant objected to the admission of these articles in evidence on the ground or illegal arrest. The objection was overruled. A fence between the school yard and the houses adjacent thereto was painted with redwood paint and on a pair of the gloves found was paint which appeared to be the same color as that on the fence. Mosley said he interrogated the appellant at the police station and he made a statement. Mosley testified as to the content of the statement. ²

The appellant said he and Vucci had been in Washington earlier that evening and then came back to the Georgian Motel on prior arrangements to meet Michael Lee Hernandez; 'that at the Motel they began to discuss, to discuss taking a trip, either to Florida, New York or Philadelphia. And they decided to break into a place to obtain money for this trip. They stated Richard Montgomery because they figured a basketball game had been held that night, which was Friday night. The arrest was made that night or Saturday morning. They felt since there had been a basketball game held there, there would be a lot of money in the school; stated they went to Richard Montgomery for the purpose of breaking into the school; stated that when Vucci and Hernandez came running back to the car, he told them, 'Let's get out of here; the cops are everywhere.''

On cross-examination the transcript of the proceedings reads as follows:

'BY MR. NOYES (defense counsel):

Q. Detective Mosley, when you saw these two male subjects, Vucci and Hernandez, running out from behind these two houses you described, shortly thereafter you stated you stepped out, identified myself and arrested them; is that right?

A. Yes, sir.

Q. At that point what felony did you believe that these two men had committed, if any?

A. Housebreaking.

Q. And you believe they had broken in where?

A. The school.

Q. Did you determine if the school had been broken into?

A. We went back later.

Q. At that point, now, not later, but when you stopped them, had you in any way inspected that school to see if it had been broken into?

A. I had other grounds to believe it was.

Q. What other grounds?

A. Due to Hernandez's method of operation, due to the prior arrest of him on another offense where he used a motel, as he did this night, that he did break into the school and he used Drug Fair tools to break in the school.

Q. What you're indicating you knew, was it Vucci?

A. Hernandez was.

Q. He was known to you as a housebreaker?

A. Very definitely.

Q. The fact you saw him in the vicinity of the Richard Montgomery High School without inspecting the school, you then presumed he had broken into the school; is that right?

A. Based on the other things, the fact he registered in the motel, he had gone to Drug Fair and made a purchase which was in line with his method of operation, the fact that he had gone down to Richard Montgomery High School in the rear where he did not live, the fact his car at 3:45 A.M. in the morning, got out of the car and went to the rear where he came-yes, sir, I felt he had committed a housebreaking.

Q. Detective Mosley, wouldn't it have been just as plausible that he was casing the place?

A. I don't think so because of the night it was. It was Friday night and this is when he elected to break in from the prior arrests of him, that this, he, I felt he had broken in. I felt in my own mind that he had.

Q. You did state you saw a police car coming around with the light flickering around?

A. Yes, sir. We called for assistance.

Q. This is what you believe chased Vucci and Hernandez away from the school?

A. That is correct, sir.

Q. How did you know that they had not been chased away from that school before any attempt was made to break in?

A. Because enough time had elapsed from the time the car was parked for them to.'

Mosley said that the arrests were made because he felt on the knowledge he had and his observations that Vucci and Hernandez had broken into the school with felonious intent ³ and that the appellant was a principal because he was 'the wheelman, or the driver.' ⁴

THE ARREST

We believe what we said in Simms v. State, 4 Md.App. 160, at 166-167, 242 A.2d 185, at 189 to be apposite here:

"(T)he 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.' * * * In assessing the validity of an arrest under the rule the essential ingredient is that probable cause existed within the knowledge of the arresting officer and not that he necessarily construed that knowledge correctly. It is not the belief of the officer that determines the validity of the arrest; it is whether, in the situation in which he found himself, he had probable cause to believe a felony had been committed and that the person arrested committed it.' (citations omitted).

The Supreme Court in Brinegar v. United States, 338 U.S. 160, 174-175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, distinguished the standards and latitude allowed in passing upon the distinct issues of probable cause and guilt. It said that if the standards applicable to guilt were to be imposed in determining probable cause for arrest or for search and seizure, 'few indeed would be the situations in which an officer, charged with protecting the public interest by enforcing the law, could take effective action toward that end.' In discussing probable cause, it said, at page 175, 69 S.Ct. at page 1310:

'In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.'

We think, on the factual circumstances surrounding the arrest of the appellant, that the officer had probable cause to make the arrest. Considering facts within the knowledge and senses of the arresting officer-that it was 3:45 A.M.; that Vucci and Hernandez did not live in the area; that there was no legitimate reason apparent to the officer for the car to have been...