State v. Lohss

• Decision Date: 28 December 1973
• Docket Number: Nos. 231,386,s. 231
• Citation: 313 A.2d 87,19 Md.App. 489
• Parties: STATE of Maryland v. Lawrence H. LOHSS. STATE of Maryland v. Conald M. SPRENKLE.
• Court: Court of Special Appeals of Maryland

Page 489

19 Md.App. 489

313 A.2d 87

STATE of Maryland v. Lawrence H. LOHSS.

STATE of Maryland v. Conald M. SPRENKLE.

Nos. 231, 386.

Court of Special Appeals of Maryland.

Dec. 28, 1973.

James G. Klair, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Raymond G. Thieme, Jr., State's Atty. for Anne Arundel County and Gerald K. Anders, Asst. State's Atty. for Anne Arundel County, on the brief for appellant.

Joseph H. Rouse, Annapolis, for appellee Lohss.

Theodore G. Bloom, Annapolis, with whom were Albert J. Goodman and Goodman & Bloom, Annapolis, on the brief for appellee Sprenkle.

Argued before ORTH, C. J., and MORTON and GILBERT, JJ.

ORTH, Chief Judge.

The threshold question presented by these appeals is whether this Court has jurisdiction to hear them. ¹

LAWRENCE H. LOHSS and DONALD M. SPRENKLE were jointly indicted, charged with violations of the controlled dangerous substances law. The indictment was dismissed as to each of them prior to trial on the merits because the State could not prove the charges presented without evidence which was excluded upon grant by the court below of motions to suppress property obtained by a search and seizure found to have been unlawful. The order dismissing the indictment as to Lohss was issued by Evans J. on 20 March 1973 upon written motion of Lohss. In the record is a pencil notation on a pad-size sheet of paper bearing the printed name of Judge Evans: 'Mr. Anders (Assistant State's Attorney) concedes; no objection to order.' The order dismissing the indictment as to Sprenkle was issued by Wray, J. on 27 June 1973 upon written motion of the State. Judge Wray noted on the motion on that date: 'I have earlier talked with Mr. Bloom (defense counsel). He has no objection to grant of Motion.'

I

In Maryland appellate jurisdiction is at the largess of the General Assembly. A state is not required by the federal constitution to provide the right of appellate review. Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 100 L.Ed. 891; Harris v. State, 6 Md.App. 7, 17, 249 A.2d 723. ² The Constitution of Maryland, however, established a Court of Appeals; by amendment it permits the statutory creation of intermediate courts of appeal and their appellate jurisdiction. Constitution of Maryland, Art. IV, §§ 14 and 14A. By virtue of this authority the General Assembly created the Court of Special Appeals, Code, Art. 26, § 130, and from time to time has allocated jurisdiction between the two appellate courts. See Code, Art. 5, §§ 5A-5D.

By Acts 1957, ch. 399, § 4, the General Assembly repealed Art. 5 of the Code, entitled 'Appeals and Errors' and enacted a new Art. 5 in lieu thereof, entitled 'Appeals'. In § 14 of the new Article 5 it prescribed the right of appeal by the State. Section 14, as amended by Acts 1966, ch. 12, § 1, ³ reads:

'The State may appeal to the Court of Special Appeals from a final order or judgment granting a motion to dismiss, or quashing or dismissing any indictment, information, presentment or inquisition in a criminal action, but the State shall have no right of appeal in any criminal action where the defendant has been tried and acquitted.'

We have declared that the statute means precisely what it says. State v. Simms, 13 Md.App. 203, 205, 282 A.2d 533, citing State v. Hunter, 10 Md.App. 300, 270 A.2d 343. What it says, loud and clear, is that the State is given the right to initiate and perfect, and the Court of Special Appeals is given jurisdiction over, an appeal from a final order or judgment granting a motion to dismiss or dismissing an indictment. ⁴ The plain legislative intent is that the State may appeal to this Court from the dismissal of an indictment irrespective of the reasons motivating such dismissal, the only limitation being where the accused has been tried and acquitted. So, in Hunter, at 307, 270 A.2d at 346, we found '* * * no intention on the part of the Legislature to restrict the State's right of appeal to cases where the dismissal was based on the legal insufficiency of the indictment.' Recognition of this view is manifest in the appeals entertained by the Court of Appeals and this Court. Orders have been reviewed which dismissed indictments on the grounds of denial of a speedy trial, ⁵ violation of the guarantee against double jeopardy, ⁶ lack of prosecution, ⁷ and failure to provide a preliminary hearing. ⁸

We see nothing in the unambiguous language of the statute to indicate that the Legislature intended to exclude from the right of the State to appeal from any order dismissing an indictment, an order in which the dismissal was predicated upon the grant of a motion to suppress evidence. On the contrary, we have, in the past, accepted that we have jurisdictin to hear such appeals and entertained them. See, for example, State v. Graziano, 17 Md.App. 276, 301 A.2d 36; State v. Lee, 16 Md.App. 296, 295 A.2d 812; State v. Siegel, 13 Md.App. 444, 285 A.2d 671; State v. Swales, 12 Md.App. 69, 277 A.2d 449.

We do not think that the jurisdiction of this Court is affected by who initiates the order of dismissal. The statute does not limit the State's right to appeal to dismissals of indictments not at its instance. The dismissal is at the sound discretion of the trial court, and whether the dismissal is suggested or proposed or urged or formally moved by the accused or by the State, or is accomplished by the sua sponte action of the court is not material to our jurisdiction or to the State's right to appeal. As we have indicated, the statute flatly gives the State the right to appeal 'from a final order or judgment granting a motion to dismiss, or quashing or dismissing any indictment', the only exception being where 'the defendant has been tried and acquitted.' We adhere to our expressed belief that the statute means precisely what it says.

We hold that the appeals here are within our jurisdiction. ⁹

II

The general rule is firmly established that appeals from interlocutory orders of the trial court in a criminal case are not allowed, the principle being that they are premature until after final judgment. Code, Art. 5, § 12; Rule 1035; Raimondi v. State, 8 Md.App. 468, 470, 261 A.2d 40. See Powers v. State, 8 Md.App. 487, 261 A.2d 44; Davis v. State, 8 Md.App. 480, 261 A.2d 37; Dodson v. State, 8 Md.App. 478, 261 A.2d 38; Pearce v. State, 8 Md.App. 477, 261 A.2d 39. Compare Westmoreland v. State, 8 Md.App. 482, 261 A.2d 35; Brown v. State, 2 Md.App. 388, 234 A.2d 788. The grant of a motion to suppress evidence, standing alone, is an interlocutory order and not appealable. State v. Mather, 7 Md.App. 549, 256 A.2d 532. ¹⁰ But when a final judgment is attained by the dismissal of the indictment, the propriety of the motion to suppress is open to review by this Court upon appeal of the dismissal of the indictment by the State. Rule 1087 provides:

'On an appeal from a final judgment, every interlocutory order which has previously been entered in the action shall be open to review by this Court unless an appeal has theretofore been taken from such interlocutory order and has been decided on the merits by this Court.'

We hold that the order of the Circuit Court for Anne Arundel County entered 27 February 1973 granting the motion by Lohss and the motion by Sprenkle to suppress evidence claimed to have been obtained by an unlawful search and seizure is open to review by this Court, upon dismissal of the indictment.

We are not persuaded to the contrary by the argument of appellees that the State is accomplishing through the dismissal of the indictment an appellate review of the motion to suppress otherwise not available to it. We have found that such review in the circumstances is authorized by statute, rule and judicial decision. ¹¹ It is true that the Court of Appeals and this Court have said that if the denial of a motion to suppress evidence is to be appealable, it must be granted by the Legislature. State v. Adams, 196 Md. 341, 351, 76 A.2d 575; State v. Barshack, 197 Md. 543, 545, 80 A.2d 32; State v. Mather, supra, at 554 of 7 Md.App. 256 A.2d 532. But the statement was made in the frame of reference of an appeal from an interlocutory order standing alone. ¹² Although the Legislature has not responded by bestowing the right of appeal to an interlocutory order, standing alone, which grants a motion to suppress the evidence, it has evidenced its satisfaction with the present status of the law, permitting review of the interlocutory order after final judgment, by not changing it.

III

A motion to suppress evidence on the ground that it was obtained by an unlawful search and seizure was filed by Sprenkle on 18 December 1972 and by Lohss on 13 January 1973. Rule 729 b 1. A plenary hearing on the consolidated motions was had on 18 January. Rule 729 d 1. ¹³ They were granted by order entered 27 February.

At the hearing testimony was received from Sprenkle, Lohss, Robert D. Housley, the City Manager for Texas International Airlines in Austin, Texas, employed by the company for eleven years, and two police officers, Corporal Warren Pitt and Trooper Wayne A. Peret of the Maryland State Police, Narcotics Section. The events leading to the seizure of the challenged evidence was undisputed in substantial part. On 31 August 1972 Sprenkle booked passage on a chartered plane from Robert Mueller Airport in Austin, Texas to Dallas, Texas. He checked his baggage, consisting of three suitcases, two large and one small, about 5:35 p. m. central standard time through to his ultimate destination, Friendship International Airport in Maryland. Warren B. Hewgley, the Customer Service Agent for Texas International whose duties at times included assisting in loading and unloading the planes, while processing Sprenkle's baggage noticed a strong odor of marijuana. He reported to Housley. 'He came to my office and said we have a suitcase out here that smells very much like marijuana and he asked me to smell his hands and * * * the...