State v. Mather, 470

• Decision Date: 13 August 1969
• Docket Number: No. 470,470
• Citation: 256 A.2d 532,7 Md.App. 549
• Parties: STATE of Maryland v. Leonard Joseph MATHER.
• Court: Court of Special Appeals of Maryland

Page 549

7 Md.App. 549

256 A.2d 532

STATE of Maryland v. Leonard Joseph MATHER.

No. 470.

Court of Special Appeals of Maryland.

Aug. 13, 1969.

John J. Garrity, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Baltimore, Arthur A. Marshall, Jr. and Joseph C. Sauerwein, State's Atty. and Asst. State's Atty. for Prince George's County, respectively, Upper Marlboro, on the brief, for appellant.

Albert J. Ahern, Jr., Washington, D. C., with whom was William R. Scannell, Landover Hills, on the brief, for appellee.

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

MURPHY, Chief Judge.

The question here to be decided is whether the State has the right to appeal to this court from the granting of the defendant's pretrial motion to suppress evidence alleged by him to have been obtained as a result of an unlawful search and seizure.

Appellee Mather was charged in Prince George's County with unlawfully having caused the termination of a human pregnancy in violation of Chapter 470 of the Acts of 1968, now codified as Sections 149E-149G of Article 43 of the Maryland Code (1968 Supp.). Prior to trial, Mather filed a motion to suppress designated items of personal property which had been seized by the police from his residence at the time of his arrest, the motion being based on the ground that the search for and seizure of such items was violative of his rights under the Fourth Amendment to the Federal Constitution. A pretrial evidentiary hearing was then held, following which the court granted Mather's motion to suppress and ordered that all such illegallly seized evidence be returned to Mather. The State promptly noted an appeal from the lower court's 'Opinion and order * * * suppressing the evidence.' Mather filed a motion to dismiss the State's appeal on the ground that the order appealed from did not constitute a final judgment and that, consequently, we were without jurisdiction to consider the substantive search and seizure questions raised by the State's appeal.

Chapter 399 of the Acts of 1957 repealed all prior statutes regulating the right of appeal in criminal cases and enacted in lieu thereof a number of new provisions relating thereto including, under the specific subheading 'Right of appeal by State,' what is now codified as Section 14 of Article 5 of the Maryland Code. That Section, as amended by Chapter 12 of the Acts of 1966, 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.'

Prior to the enactment of Section 14, the common law of this State, as articulated in State v. Buchanan, 5 Har. & J. 317, 324, permitted the State to seek appellate review by writ of error of a judgment in a criminal case sustaining a demurrer to or quashing an indictment. State v. Adams, 196 Md. 341, 76 A.2d 575, and State v. Barshack, 197 Md. 543, 80 A.2d 32, both decided prior to the enactment of Section 14, involved the question whether the State's common law right of appeal under Buchanan permitted it to appeal from the granting of a motion quashing a search warrant and/or suppressing evidence on the ground that it had been illegally seized. It was argued in those cases, as it is here, that the effect of granting such a motion is to strip the State of its evidence and render it powerless to proceed to trial, the result being that the granting of such motions is tantamount to the sustaining of a demurrer to the indictment, thus terminating the prosecution, and discharging the accused. This argument was flatly rejected by the Court of Appeals in both Adams and Barshack. Recognizing the rule that an appeal in a criminal case is premature until after final judgment, ¹ the court in Barshack held at page 544,80 A.2d at page 33 that the granting of such a motion 'was no more final than would be any other ruling excluding testimony at a trial.' And in Adams the court held at page 351, 76 A.2d at page 579 that 'If a broader right of review in necessary in the interest of criminal justice, it must be granted by the legislature.' We think it plain that the Legislature, in enacting Section 14, did not grant the 'broader right of review' mentioned in Adams, but, on the contrary, limited the scope of the State's right to appeal to final orders or judgments granting a motion to dismiss or quashing the indictment.

The State argues that under Section 14, it is authorized to appeal from any final order or judgment involving an 'inquisition in a criminal action'; that by the decision in Phillips v. Vessells, 2 W.W.Harr. 490, 126 A. 51 (Del.), such an 'inquisition' would cover any 'judicial inquiry' and, as the lower court's granting of Mather's motion to suppress evidence was a 'judicial inquiry' finally adjudicating the question against the State, the State may appeal therefrom under Section 14. Although reflecting much ingenuity we find the State's argument unsound. Under Section 14, the State's right of appeal is from a final order or judgment granting a motion to dismiss or quashing an indictment, information, presentment 'or inquisition in a criminal action.' While in its broadest sense, the term 'inquisition' may include any judicial inquiry, it is readily apparent that as used in Section 14 an 'inquisition in a criminal action' bears close kinship to charging a person with crime by indictment, information, or presentment. Indeed, the term has generally been confined to a factual inquiry made by a jury, together with the instrument of writing upon which the jury's decision is based. See Black's Law Dictionary, Third Edition; 43 C.J.S. Inquisition page 1209. We need not, however, determine the exact breadth of the term 'inquisition' as used in Section 14. We decide only that it cannot properly be interpreted to authorize the State to appeal from the lower court's granting of Mather's pretrial motion to suppress the evidence.

In the March 1969 publication of the American Bar Association entitled 'Standards Relating to Criminal Appeals,' the observation is made at page 37 that most states, while permitting prosecution appeal of pretrial decisions that formally terminate the case, do not presently allow appeals from orders suppressing evidence. But as the publication notes at pages 34-38, there has been a recent trend among the states to enact legislation permitting the State to appeal from such rulings where the practical effect of the ruling is to preclude further prosecution of the case or seriously impede its continuation. And see 18 U.S.C.A., Section 3731, wherein the Congress of the United States has authorized an appeal by the government from pretrial orders suppressing evidence if the United States Attorney certifies to the trial court that 'the appeal is not taken for purpose of delay and that the evidence is a substantial proof of the charge pending against the defendant.' In this general connection, we note that by Maryland Rule 729, adopted September 1, 1967, if a motion suppressing evidence is denied or overruled, the objection of the accused thereto is expressly preserved for appellate review, whereas the only mention made by the Rule of the effect of granting such a motion is to require the State to return the illegally obtained property to the accused. ² Under the present law of Maryland, therefore, the State has no right to appeal, either by statute, by rule, or under the common law, from the granting of a motion to suppress evidence. For an interesting discussion of the State's right to appeal in criminal cases see the excellent series of articles appearing in Volumes 4, 7 and 12 of the Maryland Law Review, respectively at pages 303-312, 364-367, and 68-87. See also State v. Barger, 242 Md. 616, 626, 220 A.2d 304; State v. Fisher, 204 Md. 307, 104 A.2d 403; State v. James, 203 Md. 113, 100 A.2d 12; State v. Rosen, 181 Md. 167, 28 A.2d 829; State v. Shields, 49 Md. 301; State v. Bass 153 Tenn. 162, 281 S.W. 936, and State v. Studer, 149 Wash. 210, 270 P. 430, cited with approval in State v. Barshack, supra, and Orfield, Criminal Appeals in America (1939) at pages 55-76, dealing generally with the states' right of appeal in criminal cases.

Further illustrating the depths of the State's frustration in seeking a way to obtain appellate review of the lower court's order suppressing the evidence is its final contention-pursued, we think, with commendable zeal-that we issue a writ of prohibition to preclude the trial court from excluding the evidence under its order granting the motion to suppress. Such a writ was recognized at common law and has been generally defined as a process by which a superior court prevents inferior courts from usurping or exercising jurisdiction with which they have not been vested. See 73 C.J.S. Prohibition § 1, et seq. It is thus not the function of the writ to review proceedings, and assuming we had authority to issue such a writ, we would not under the circumstances of this case do so.

In dismissing the State's appeal for want of jurisdiction to decide the complex constitutional question presented by the State, we can but echo the statement of the Court of Appeals in Adams, repeated and reemphasized in Barshack, that 'If a broader right of review is necessary in the interest or criminal justice, it must be granted by the legislature.'

Appeal dismissed.

ORTH, Judge (concurring).

I agree that the State does not have the right to appeal to this Court from the granting of the defendant's pretrial motion to suppress evidence alleged to have been obtained as a result of an unlawful search and seizure and I am in full accord with the reasons so clearly stated by Chief Judge...