State v. Sedacca
| Decision Date | 21 January 1969 |
| Docket Number | No. 9,9 |
| Citation | 249 A.2d 456,252 Md. 207 |
| Parties | STATE of Maryland v. Morris SEDACCA. |
| Court | Maryland Court of Appeals |
Alfred J. O'Ferrall, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., David T. Mason, Asst. Atty. Gen., of Baltimore, and Edwin H. W. Harlan, Jr., State's Atty., for Harford County, Bel Air, on the brief), for appellant.
Cypert O. Whitfill, Bel Air (T. Carroll Brown and Stanley Getz, Bel Air, on the brief), for appellee.
Before HAMMOND, C. J., and MARBURY, BARNES, FINAN and SINGLEY, JJ.
The appellee, Morris Sedacca, was convicted in the Circuit Court for Harford County (Dyer, J.), without a jury, of transportation and possession of untaxed cigarettes in violation of Code (1957), Article 81, Section 455. Sedacca raised three defenses in the trial court, i. e., (1) that the statute was unconstitutional on its face, (2) that the statute was unconstitutional as applied to him in the pending case, and (3) that the search and seizure of the cigarettes on November 12, 1965 was an unreasonable and unconstitutional search and seizure so that the cigarettes as evidence against him should have been suppressed by the trial court for this reason. Judge Dyer, after taking substantial testimony and hearing the arguments of counsel for the accused and for the State, rendered a comprehensive and careful written opinion in which he resolved all of the three issues against Sedacca, so far as the violation of Section 455 was concerned, but rendered a verdict of not guilty for alleged violations of Sections 438 and 463 of Article 81. The trial court, on June 7, 1966, sentenced Sedacca to imprisonment for one year On appeal to the Court of Special Appeals, the judgment of the trial court was reversed. The Court of Special Appeals was of the opinion that the search and seizure was unlawful and found it unnecessary to consider the two constitutional issues raised by Sedacca in regard to the statute, itself. We granted certiorari on March 12, 1968.
in the Maryland House of Correction and to pay a fine of $500, but suspended the jail sentence upon Sedacca's good behavior and without supervision by the Maryland Department of Parole and Probation upon condition that the fine be paid within the week of sentence. Sedacca paid the fine together with $36 court costs to the Clerk of the Circuir Court for Harford County and the trial court, upon Sedacca's petition, ordered the clerk to deposit the $500 fine in a special account until the final decision of the case by this Court.
As we disagree with the conclusion of the Court of Special Appeals in regard to the validity of the search and seizure in this case, it becomes necessary for us to consider the constitutional issues raised by Sedacca in regard to the statute and decided in the trial court. We will consider them in the order indicated and finally will consider the issue in regard to the validity of the search and seizure.
Sedacca, a New York policeman, on the morning of November 12, 1965 purchased 858 cartons of cigarettes in North Carolina. He received from the seller a slip of paper having on it the date with the name of a service station, but with the name of the purchaser left blank, which indicated the following:
"11 1/2 case King $1,290.30
1 1/2 " 25 Car. Reef 216.45
----------
$1,500.75
Paid
(with the signature of the seller)
53 Car. King 99.11
----------
$1,599.86
$1,500.75"
On the back of the paper appears
"13 X 60 780
78
----
858"
Sedacca placed some of the cartons of cigarettes on the rear floor of his two-door 1964 Plymouth sedan, registered in his name in New York State, and the remaining cigarettes in the trunk of his car. The cigarettes on the rear floor of the car were between eight and twelve inches below the level of the windows. He covered the top of the pile of cigarette cartons in the rear of his car with a green chenille double bedspread on top of which he placed a sweater. He hung his overcoat on a window peg. He testified that the bedspread completely covered the cigarettes-top, sides, front and back. He then started back to New York. He stopped in Maryland at the Maryland House service area on the John F. Kennedy Memorial Highway, Interstate Route No. 95, at about 8:45 a. m. He first stopped at the Texaco Service Station, which is located to the south of the Maryland House itself, where he had his automobile serviced and filled with gasoline. Approximately ten minutes later, he proceeded to the adjoining parking lot, parked his car, and after checking the chenille bedspread to see that it completely covered the cigarettes in the rear seat area, he locked his automobile and entered the Maryland House to use the rest room and get a cup of coffee.
Two state troopers, Trooper Landbeck and Trooper Shockley, had received information over their radios describing a particular automobile, northbound, which was possibly transporting untaxed cigarettes. The troopers observed an automobile on the parking lot at the Maryland House fitting the description they had received by radio and they also observed that the rear of this vehicle appeared to be heavily loaded.
When Sedacca returned from the Maryland House to his automobile, the troopers decided that they would observe the car for any possible traffic violation. Sedacca, according to the troopers, proceeded from his parked position and ran through a stop sign in the service area. Sedacca denied that he failed to stop as required by the stop sign but this factual issue was resolved against Sedacca by the trial court. Sedacca was immediately pursued by the troopers and was stopped approximately one-eighth of a mile on the highway by Trooper Landbeck, who stopped his unmarked Maryland State Police car about five or six feet behind Sedacca's automobile. Trooper Landbeck got out of his automobile, and he and Sedacca met The troopers conceded that they followed Sedacca's automobile to see whether or not there would be any violations of the traffic laws and also to see, if possible, what the contents of the rear portion of the car might be. The trial court found that 'The Trooper who did the checking admitted to the additional motive that the opening of the car door might reveal the contents in the rear.'
near the rear of Sedacca's car. Sedacca inquired why he had been stopped and Trooper Landbeck told him that he had failed to stop for a stop sign upon leaving the parking lot. Sedacca testified that he stated: 'I had stopped for the sign, but if he thought I didn't, well, I'm sorry, I apologize.' Trooper Landbeck then asked for Sedacca's driver's license and registration card, which were produced, and asked what was Sedacca's occupation. Sedacca stated that he was a New York City police officer and asked if Trooper Landbeck 'could grant me some consideration in view of the fact that I didn't believe I went through the stop sign, I believed I stopped, plus the fact that we were both policemen.' Sedacca testified that Trooper Landbeck made no reply; Trooper Landbeck testified he stated: 'I told him flat, no, I could not do that.' Trooper Shockley then arrived and told Sedacca that he and Trooper Landbeck had seen him 'run a stop sign.' When asked by Trooper Shockley where he was coming from, Sedacca stated 'Florida,' although this was not correct. Sedacca stated that he did this because 'I didn't want Corporal Shockley to become overly suspicious of what I was carrying.' The troopers decided to check the serial number of the Plymouth against the registration card. Here again the testimony is conflicting, Trooper Landbeck stating that he asked Sedacca if he would mind if Landbeck checked the serial number and if he (Sedacca) would open the door. Trooper Landbeck stated further that Sedacca, himself, opened the door, but Sedacca denies this, stating that Trooper Landbeck opened the door. Trooper Shockley could not remember who opened the door and the trial court merely found that 'the door was [249 A.2d 460] opened,' but did not find by whom it was opened. In any event, the door was opened and Trooper Landbeck either squatted down on his toes or knelt down to observe the serial number which did match the serial number appearing on the registration card. It was necessary to get close to the serial number which appeared on the door post some 18 inches from the ground in order to see it. While in the squatting or kneeling position, Trooper Landbeck glanced at the material stored in the rear seat area and observed that the spread had slipped away from the bottom of the pile exposing an area approximately 10 inches by 10 inches of a cardboard carton on which the word 'Kool' was visible. Upon questioning, Sedacca admitted that he was carrying untaxed cigarettes (although Sedacca stated he 'avoided an answer.') and he was then told that hewas also charged with transporting untaxed cigarettes. Agents of the cigarette tax unit were notified and when they arrived at the scene some 30 to 45 minutes later, Sedacca told them that he was transporting untaxed cigarettes, that he did not have an invoice, and that he had additional cigarettes in the trunk of his automobile. Sedacca was taken to the office of the Sheriff of Harford County, an agent of the Comptroller's office swore to and obtained a warrant for Sedacca's arrest for violation of the three provisions of Article 81 already mentioned and the cigarettes were transferred from the Plymouth to the automobile of the agents. In regard to the traffic violation, Sedacca posted $13 as collateral which he later forfeited.
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