Rife v. State, 557

• Decision Date: 10 July 1970
• Docket Number: No. 557,557
• Citation: 9 Md.App. 658,267 A.2d 326
• Parties: Michael John Joseph RIFE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 658

9 Md.App. 658

267 A.2d 326

Michael John Joseph RIFE v. STATE of Maryland.

No. 557.

Court of Special Appeals of Maryland.

July 10, 1970.

Thomas J. Aversa, Jr., Towson, for appellant.

Robert A. DiCicco, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Samuel A. Green, Jr., State's Atty., and Edward A. DeWaters, Jr., Asst. State's Atty., for Baltimore County, on the brief for appellee.

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

ORTH, Judge.

As of 1 July 1969 there is statutory authority in this jurisdiction for the first time for police officers and persons other than police officers to arrest without a warrant. Ch. 561, Acts 1969, codified as Maryland Code, Art. 27, §§ 594B and 594C. Section 594B provides that a police officer, as defined in subsection (f) thereof, may arrest without a warrant any person:

I) For any crime

1) which the arrestee commits or attempts to commit in the officer's presence or within his view (subsection (a)); or

2) which the officer has probable cause to believe is being committed in his presence or within his view and may reasonably believe the arrestee is committing (subsection (b));

II) for a felony

1) which the officer has probable cause to believe has been committed or attempted by the arrestee, whether or not in the officer's presence or within his view (subsection (c));

III) for certain designated offenses and attempts to commit certain designated offenses

1) when the officer has probable cause to believe:

a) that the arrestee has committed or attempted to commit such offense; and

b) that unless immediately arrested, the arrestee

i) may not be apprehended; or

ii) may cause injury to the person or property of one or more persons; or

iii) may tamper with, dispose of, or destroy evidence (subsections (d) and (e)).

Section 594C specifies under what circumstances and conditions certain persons other than police officers have the same power to arrest without a warrant as do police officers.

On 5 July 1969, about 10:45 A.M., two young men walked into the rental office of the Dundalk Apartments Company and stole $2791.19 at gun point from Inez Drew Gittings, an employee of the company. She described one of the robbers as having dark hair and the other as having light hair. 'The dark hair boy wore a white shirt with the tail out, had real dark brown or black hair, and acne skin. The light hair boy had a striped jersey on with dark pants, loafers and no stockings.' Shortly after the robbery Sergeant Roy Nelson of the Baltimore County Police Department received a broadcast over the police radio reporting the 'armed robbery' and the following description of the robbers: 'Number one, a white male, approximately fifteen years old, slender built, approximately five feet two, dark brown hair, wearing long sleeve shirt, long white sleeves shirt, dark pants, no further description. Number two was another white male, approximately fifteen years old, slender built, approximately five feet two, long dirty blond hair, wearing a striped brown jersey shirt and brown pants. No further description.' About 11:45 A.M. he received 'a supplement radio broadcast * * * as to one of the two possible being Italian descent darker skin in color * * *.' The officer went to an area around Willow Spring Road and Broening Highway 'that kids congregate around quite a bit' and was checking that area when 'I observed two subjects walking along the railroad tracks which parallel Broening Highway. I observed these two subjects walking in a direction towards Baltimore City. At the point near Rauls Avenue, I lost sight of them for a minute, and then they continued out onto Broening Road off the railroad tracks, down Broening Road and continued on Broening Road towards the Tollgate Creek Bridge. * * * While they were walking along the railroad tracks before being to Rauls Avenue I observed the one subject, later found to be Metallo, with a large bulge in his left front pocket, and I also observed the defendant here today, Michael Rife, who I have known for a number of years in the Dundalk District * * *. And he turned towards the direction of the police car, which was stopped at the time along the edge of Broening Road. The subject number one taller, one a little shorter than the other one, possibly with a large bulge in his pocket, and the defendant here today, having something in his right hand, which I could not determine at the time. However, when they walked out to Broening Road, he brought along what he was carrying in his hand with him. As they walked along Broening Road, I pulled up at the rear of them to stop, at which time they did. I got out of the car armed because they were allegedly to be armed at the time of the commission of the offense. * * * As I approached them, I ordered both subjects to get against the police car. I advised them they were under arrest for armed robbery.' The officer had them 'identify themselves.' They were 'John Richard Metallo, white male, eighteen years old, 256 Baltimore Avenue and Michael John Rife, white male, eighteen years, 235 Riverview Avenue, Dundalk. * * * The subject Rife was wearing a white tee shirt with a red trim around the neck and brown loafers with no socks * * * The trousers were brown.' It was then that the officer 'observed in the right front pocket of Rife * * * What I could determine from not even touching, by looking into his pocket, was a large amount of what appeared to be U. S. currency folded in half, bulged down in the pocket. * * * I handcuffed the two together, Rife and Metallo and placed them in the rear seat of the police car. * * * At his time I called for assistance.' When other officers arrived on the scene the arrestees were searched. Money in denominations of fifty, twenty, ten, five and one dollar bills were found on the person of each, $1393 on Metallo ¹ and $1383 on Rife.

Metallo and Rife were jointly indicted but separately tried in the Circuit Court for Baltimore County. Rife was found guilty at a court trial of the robbery of Mrs. Gittings with a deadly weapon.

At the trial appellant made timely objection to the evidence with respect to what was found on his person. The court overruled the objection, stating simply, 'I've concluded the arrest is legal.' It gave no reasons for this conclusion. Appellant also moved that Nelson's testimony be stricken and the motion was denied. He contends on appeal that evidence as to that was found on his person was admitted in error because the search of him and the seizure of the money from him were unreasonable as incident to an illegal arrest.

We cannot find that the warrantless arrest of appellant was legal on the record before us. It does not show that appellant committed or attempted to commit a crime in the officer's presence or within his view. Code, Art. 27, § 594B(a), or that the officer had probable cause to believe a crime was being committed in his presence or within his view, Id., § 594B(b). The officer had probable cause to believe that the felony of robbery with a deadly weapon had been committed. But the State failed to establish that he had probable cause to believe that appellant committed it. Id., § 594B(c). It adduced no evidence that the boys observed by the officer matched the physical description of the robbers received by the officer over the police radio. The State did not elicit from the officer whether, before the arrest, he thought that each of the boys was about five feet two and were of slender build (he said one was taller than the other), that each looked to be about fifteen years of age, that one had dark brown hair and dark skin, appearing to be of Italian descent and was wearing a white long sleeve shirt and dark pants, that the other had long dirty blond hair and was wearing a striped brown jersey shirt and brown pants. The State did not ask the officer to describe Metallo's clothing and the clothing appellant was wearing as described by the officer did not match the description broadcast except as to the brown pants. What it was the officer saw appellant carrying in his right hand was never disclosed. And it is clear that he saw the money in appellant's pocket after the arrest and we can only conclude from the sequence of events as described by the officer that his observation of the money in appellant's pocket was a consequence of the arrest, so that if the initial arrest was invalid the observation would not support a subsequent arrest. It may well be that the officer in fact had probable cause to believe that appellant had committed the armed robbery of which the officer had knowledge, but if he did the State did not establish it on the record. Nor can we find that the arrest was authorized by Code, Art. 27, § 594B(d). Offenses proscribed by Code, Art. 27, § 36, related to carrying or wearing a weapon, are among those within the ambit of § 594B(d), but although the officer may have had probable cause to believe that the robbers were wearing or carrying a weapon-'they were allegedly to be armed at the time of the commission of the offense'-for the reasons above discussed it was not shown that he had probable cause to believe that the arrestees were those robbers as required by § 594B(d)(2). The statute authorizing warrantless arrests does not affect the established definition of probable cause, and, as a matter of fact, subsections (a)(b) and (c) of the statute are declarative of the common law rules long followed in this jurisdiction. For the definition of probable cause see Simmons v. State, 8 Md.App. 355, 259 A.2d 814. For an application of it see Sands v. State, 9 Md.App. 71, 262 A.2d 583. We hold that the arrest was illegal. On this holding, the search of appellant and the seizure of the money from his person were unreasonable and the overruling of the objection to testimony regarding it and the denial of the motion to strike such testimony were erroneous. The errors involved the constitutional...