Sands v. State

• Decision Date: 04 March 1970
• Docket Number: No. 295,295
• Citation: 262 A.2d 583,9 Md.App. 71
• Parties: James E. SANDS a/k/a Clyde Edward Oglesby v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 71

9 Md.App. 71

262 A.2d 583

James E. SANDS a/k/a Clyde Edward Oglesby v. STATE of Maryland.

No. 295.

Court of Special Appeals of Maryland.

March 4, 1970.

Milton Kaplan, Baltimore, for appellant.

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., and Charles A. Herndon, Jr., State's Atty. and Asst. State's Atty. for Baltimore City, respectively, on brief, for appellee.

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

ORTH, Judge.

Once again we are obliged to set aside convictions because evidence obtained by a search and seizure incident to a warrantless arrest was admitted without the prosecution sufficiently establishing that the arrest was valid. See Winebrenner v. State, 6 Md.App. 440, 251 A.2d 610.

James E. Sands ¹ (appellant) was found guilty at a court trial in the Criminal Court of Baltimore of breaking the dwelling house of Bernard A. Ward situate at 2301 Monticello Road on 6 February 1969 in the daytime with intent to steal and of grand larceny of Ward's goods on the same date. He filed a pre-trial motion to suppress evidence, one of the grounds of which was that his arrest was illegal. The matter was not determined prior to trial. During the trial, after the corpus delicti of the breaking and the grand larceny had been proved, appellant brought the motion to the attention of the court, again challenged the arrest and objected to the admission of tangible evidence seized. See Maryland Rule 729. Officer Leonard Richard Johnson of the Baltimore City Police Department testified that he was on duty on 6 February 1969 in a marked radio car. He was in the vicinity of Gwynns Falls Parkway and Dukeland Street when he received a call over the police radio 'that wanted for investigation and seen fleeing the address 2301 Monticello Road were several colored males entering a 1958 Chevrolet Sedan, blue, Maryland License GY-7208, driving towards Gwynns Falls Parkway. * * * At that point I observed a 1958 Chevrolet Sedan going east on Gwynns Falls Parkway pass me. I proceeded to follow the automobile. This is in the 2800 block of Gwynns Falls Parkway. I proceeded to follow the automobile to the 2500 block of Gwynns Falls Parkway at Warwick Avenue where it was stopped for a traffic signal. I had come close to the rear of the automobile so as to see the tag number, and the number was GY-7208. I was there were four occupants in the car, and they were placed under arrest.' The court asked the witness again to tell what the call was that he received and the officer said, 'Wanted for investigation and seen fleeing the address 2301 Monticello Road were several colored males entering a 1958 Chevrolet Sedan, blue.' He recounted that there were four occupants in the car he saw, that when it stopped for the traffic signal 'I got out of my car and went over, I spoke to the occupants of the car, and placed them under arrest at that point.' He identified Sands as one sitting in the right front seat. The officer was asked what he said to the occupants and replied, 'Well, they were advised they were being placed under arrest, and at that point I don't believe anyone had said anything. I was rather excited myself. I was calling for help.' Asked what he saw in the automobile the officer said, 'There was a TV set sitting on the back seat. It could be seen from the rear of the automobile and, also, from the side as I pulled alongside the car.' The State said that 'this is all the testimony we have on the validity of the arrest.' The court reserved its determination of the validity vel non of the arrest and the State adduced evidence as to what was seized from the automobile. The court then entertained argument on the validity of the arrest. The Assistant State's Attorney referred to the police report urging that from the report the arresting officer knew that the felony of daytime breaking of a dwelling with intent to steal or grand larceny had been committed-'They said over the radio they were wanted for investigation of a burglary.' Defense counsel correctly pointed out that there was no such evidence before the court, that the officer had merely said the information he received was that the described men were 'wanted for investigation.' There was no evidence before the court as to what information the police had received which served as the basis for the radio broadcast and no evidence as to what had been placed on the air except as testified by the arresting officer.

The court denied the motion to suppress and admitted the evidence seized by a search of the automobile. In so ruling the court noted that burglary is a generic term used by laymen and by most police officers to cover any kind of a breaking and entering. It said:

'Now, that is what was troubling me in this case because the report was of a burglary. And I was under the impression at that time that this particular kind of a burglary was a misdemeanor, but, as Mr. Herndon points out, the statute has been amended to make this a felony so that we are now dealing with the felony Rule, which is that the police officer who makes the arrest may rely on probable cause in two regards, one, probable cause that a felony has in fact been committed and two, probable cause that the person arrested is the felon. So that there is no specific, absolute requirement that the felony has in fact been committed nor that the arrestee is in fact the felon as long as probable cause exists with reference to both of those factors. And based on the evidence in this case, I find that probable cause did exist with reference to both of the factors and that, therefore, the officer was correct in stopping the car and arresting the occupants and recovering the articles that were in the car and, therefore, the arrest is declared valid and the State's exhibits are now admitted into evidence.' ²

The rule upon which the lower court relied has been long established in this jurisdiction. A police officer may arrest without a warrant where there is probable cause to believe that a felony has been committed and that the person arrested committed it. The general rule is that probable cause in this context exists when the facts and circumstances within the knowledge of the arresting officer, or of which he had reasonably trustworthy information, are sufficient to warrant a reasonably cautious person in believing that a felony had been committed by the person arrested. Simms v. State, 4 Md.App. 160, 166-167, 242 A.2d 185. Both the Court of Appeals and this Court have held that a report of a felony and a description of the perpetrators broadcast over a police radio may furnish probable cause for an arrest. Hopkins v. Terry v. State, 239 Md. 517, 211 A.2d 831; Darby v. State, 3 Md.App. 407, 239 A.2d 584. But it is not essential that the arresting officer himself have probable cause for the arrest, where another member of the police team has probable cause and the arresting officer has been alerted to make the arrest over the police radio. Robinson v. State, 4 Md.App. 515, 524, 243 A.2d 879. However, in any event, the evidence before the trial court must be sufficient to show that the arresting officer himself had probable cause or, if he did not, that a member of the police team did, and that the arresting officer was alerted to make the arrest.

The evidence before the trial court here was not sufficient to establish either that the arresting officer himself had probable cause to believe that a felony had been committed or that a member of the police team had probable cause to so believe. The ruling of the court was based upon an incorrect factual premise as to the evidence before it; there was no evidence adduced that the police had information giving them reason to believe that a breaking of a dwelling house, or a 'burglary' had been...