Shelton v. State

• Decision Date: 20 March 1968
• Docket Number: No. 133,133
• Citation: 239 A.2d 610,3 Md.App. 394
• Parties: Blair Eugene SHELTON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 394

3 Md.App. 394

239 A.2d 610

Blair Eugene SHELTON v. STATE of Maryland.

No. 133.

Court of Special Appeals of Maryland.

March 20, 1968.

John J. McBurney, Marlow Heights, for appellant.

Edward R. Jeunette, Sp. Asst. Atty. Gen., Francis B. Burch, Atty. Gen., Baltimore, Arthur A. Marshall, Jr. and Howard S. Chasanow, State's Atty., and Deputy State's Atty. for Prince George's County, respectively, Upper Marlboro, on the brief for appellee.

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

MURPHY, Chief Judge.

The appellant, Blair Eugene Shelton, was convicted on January 17, 1967 of two counts of storehouse breaking and two counts of larceny by a jury in the Circuit Court for Prince George's County, and sentenced to ten years in the Maryland Penitentiary on each count, the sentences to run concurrently. On this appeal the appellant contests the legality of his arrest and the admissibility of evidence seized incident thereto, the sufficiency of the evidence to sustain his conviction, and the propriety of the trial judge's ruling disallowing his request to summon certain witnesses to testify in his behalf.

There was evidence adduced at the trial showing that in the early morning hours of February 1, 1965, at approximately 4:00 a.m., Officer Charles Roberts of the Prince George's County Police Department was driving his police cruiser on Ager Road in the County when he observed an automobile backing into a parking space across the road from the Green Meadows Shopping Center in such a position 'where it could observe the store fronts of the shopping center.' Officer Roberts continued down the road to assist an officer in another matter, but returned to the Green Meadows area between five and ten minutes later. He checked the rear of the stores in the shopping center, after which he pulled parallel to the car he had previously noted across from the shopping area, and approached the vehicle on foot. The officer tapped on the window of the car since it was covered with frost. The occupant mumbled something unintelligible, and Officer Roberts asked to see his driver's license and registration card. At this point, the vehicle started up and speeded away, running a stop sign at Ager Road, and turning onto the East-West Highway, weaving from side to side on the roadway. Officer Roberts pursued and observed the automobile run a red light before he was able to stop it. The driver of the car, identified at the trial as the appellant, was ordered out of the car and arrested for the various traffic violations. The appellant at that time identified himself to Officer Roberts as Larry Rogers; however, Detective James Ross, who arrived at the scene shortly after appellant's arrest, recognized him to be Blair Eugene Shelton. After Detective Ross' arrival and identification, Officer Roberts looked into the automobile through the open door on the driver's side and observed a walkie-talkie radio unit lying on the front seat. The car was then searched, and the radio seized. The officers, together with the appellant, then returned to the shopping center, driving around to the rear of the stores, where they observed an individual run from the rear door of the Melody Cleaners store. The officers gave chase, whereupon Detective Ross discovered William Blake lying in some brush in the wooded area directly behind the store. On the ground beside Blake, Detective Ross discovered approximately.$373.00 in currency and numerous checks, some of which were payable to the Riggs Manor Pharmacy. In that same area, Detective Ross also found a walkie-talkie radio of the same make as that taken from the appellant. The two radios bore serial numbers 23419 and 23420 respectively, and it was demonstrated at the trial that communication was able to be sustained between them. Both walkie-talkie sets were introduced into evidence at the trial over appellant's objection.

Bernard Prensky, the owner of the Riggs Manor Pharmacy in the Green Meadows Shopping Center, testified at the trial that on February 1, 1965 a hole had been made in the party wall separating his establishment from Melody Cleaners, that the safe in his store had been broken into, and that about $1900.00 in cash and checks had been taken. George Rollins, owner of the Melody Cleaners, testified with respect to the hold in the wall, and further testified that the glass in the skylight of his place of business had been broken and the bars thereon removed. He also stated that the latches on the rear door had been broken and that about $195.00 in cash was missing.

At the conclusion of the State's case the appellant stated in his own behalf that he wished to call three witnesses in his defense. Appellant's counsel, however, declined to have these witnesses subpoenaed, as he believed that their testimony would be harmful. The trial judge expressed the view that matters of trial tactics were solely within the discretion of defense counsel and that he would not allow the appellant to dictate the defense of his case. The defense thereupon rested its case without calling any witnesses in its behalf.

Appellant's principal contention is that the search of his vehicle which resulted in the seizure of his walkie-talkie radio was illegal and that the radio, being the fruit of that search, was improperly received in evidence below. We disagree.

While Officer Roberts did not have probable cause to believe that appellant had committed a felony at the time he arrested him, the arrest was nevertheless lawful since it was based upon multiple misdemeanors committed in the officer's presence, namely the numerous violations of the motor vehicle laws of this State. See Braxton v. State, 234 Md. 1, 197 A.2d 841; Jenkins v. State, 232 Md. 529, 194 A.2d 618; Dixon v. State, 1 Md.App. 623, 232 A.2d 538; Crumb v. State, 1 Md.App. 98, 227 A.2d 369. As a general rule, where the arrest is lawful, the officers have a right to conduct a contemporaneous search incident thereto, both of the person of the arrestee, and of the property under his immediate control, including the motor vehicle which he was operating at the time of his arrest. Knotts v. State, 237 Md. 417, 207 A.2d 100; Lewis v. State, 2 Md.App. 678, 237 A.2d 73; Barton v. State, 2 Md.App. 52, 233 A.2d 330; Musgrove v. State, 1 Md.App. 540, 232 A.2d 272; Gaudio v. State, 1 Md.App. 455, 230 A.2d 700; Stokes v. State, 1 Md.App. 253, 229 A.2d 145. It has been held, however, that a police officer is not authorized to conduct a general search every time he stops a motorist for an ordinary traffic infraction. People v. Marsh, 20 N.Y.2d 98, 281 N.Y.S.2d 789, 228 N.E.2d 783; Lane v. Commonwealth, 386 S.W.2d 743, 10 A.L.R.3d 308 (Ky.); People v. Thomas, 31 Ill.2d 212, 201 N.E.2d 413, cert. den. 380 U.S. 936, 85 S.Ct. 948, 13 L.Ed.2d 824; Annotation, 10 A.L.R.3d 314-354 ('Lawfulness of Search of Motor Vehicle Following Arrests for Traffic Violation'). This limitation-distinguishing between motor vehicle misdemeanors and other misdemeanor violations of the criminal laws-has not as yet been afforded any recognition by the Court of Appeals of Maryland. See Braxton v. State, supra, and Jenkins v. State, supra. We note, however, that the limitation on the right of the police to conduct a search incident to a full custody arrest for a minor motor vehicle offense, is principally based upon the proposition that, ordinarily, there are no fruits or implements of a traffic offense for which to conduct a search. See Grundstrom v. Beto, D.C., 273 F.Supp. 912, and cases there cited. But one of the traditional justifications for permitting a search incident to an arrest is the need of the police to seize weapons and other objects that might be used to assault an officer or effect an escape. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777; Lewis v. State, supra; St. Clair v. State, 1 Md.App 605, 232 A.2d 565. While some courts have seen fit to speculate that there is no real need to search the ordinary traffic offender or his vehicle for weapons or other objects useful in facilitating an escape (see People v. Marsh, supra), we are mindful, and are made more so each day, of those mounting cases where an officer is subjected to an attack by a motorist while investigating routine or minor traffic violations. We are persuaded that where a traffic offender is subjected to a full custody arrest, it is not per se unreasonable to search his person and, within limits, his vehicle for weapons or for means of escape. See Barnes v. State, 25 Wis.2d 116, 130 N.W.2d 264; People v. Mayo, 19 Ill.2d 136, 166 N.E.2d 440; People v. Gonzales, 356 Mich. 247, 97 N.W.2d 16. In determining, therefore, whether a search for weapons or means of escape is valid following a full custody arrest for a traffic offense, we think the test to be applied is one of reasonableness, viz., whether, under all of the circumstances, the officer had reasonable grounds to believe that a search was necessary for his own safety or to prevent an escape.

The record before us discloses gross violations of the motor vehicle laws committed by the appellant in the...