Sutton v. State

• Decision Date: 09 December 1969
• Docket Number: No. 101,101
• Citation: 8 Md.App. 285,259 A.2d 561
• Parties: James Thomas SUTTON, Henry Lee Sutton, Allen Player and Levern Edward Player v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 285

8 Md.App. 285

259 A.2d 561

James Thomas SUTTON, Henry Lee Sutton, Allen Player and Levern Edward Player v. STATE of Maryland.

No. 101.

Court of Special Appeals of Maryland.

Dec. 9, 1969.

William O. E. Sterling, Leonardtown, for appellant.

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and Joseph D. Weiner, State's Atty. for St. Mary's County, on the brief, for appellee.

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

THOMPSON, Judge.

James Thomas Sutton, Henry Lee Sutton, Allen Player and Levern Edward Player, the appellants, were jointly tried by a jury in the Circuit Court for St. Mary's County, Judge Philip H. Dorsey, Jr., presiding. Both Suttons were convicted of grand larceny and sentenced to a term of four years. Both Players were convicted of breaking with intent to steal goods valued at more than $100. and were sentenced to a term of six years. Facts necessary to decide each contention are set out separately.

I The Legality of the Search

On November 19, 1968, at or about 3:15 A.M., Trooper Charles O. Lawrence noticed a 1959 black Ford on which the left taillight and the tag light were out. A summary of his testimony follows: As he was within one thousand feet of the vehicle, he noticed that the driver switched seats with the passenger seated in the right front. Upon seeing this, Trooper Lawrence called for assistance. After the car was stopped and other troopers arrived, Trooper Lawrence noticed a television in the back seat, a typewriter and tape recorder in the front seat and numerous other articles. When questioned about these articles, the Sutton brothers explained that they were transporting the articles for the Player brothers. The Player brothers stated that they did not know anything about the articles, that they had been hitchhiking, and that the Sutton brothers had picked them up. The items in the car had numerous markings on them, and the tape recorder had 'Mechanicsville No. 2' marked on the back. No search was undertaken as all the items were viewed from the outside of the car with the aid of a flashlight. After a conference among the troopers, it was decided to take the four appellants to the Waldorf Barracks for further questioning with reference to the articles in the car. At the Waldorf Barracks, the troopers were advised of a breaking and entering at a school in Mechanicsville in St. Mary's County.

Trooper Kenneth C. Weinreich, one of the troopers who responded to the call for assistance, testified slightly differently stating he felt he had reasonable grounds to make a search at the highway and thus proceeded then to inventory the items in the car. His specific testimony was as follows:

'A. I advised Trooper Lawrence that we should check the articles in the car and get the serial numbers, makes and models of the articles in the car of which, at the time, I started a list on a 3 by 5 card which is what I hold in my hand now.

'Q. What articles were in the car. Officer?

'A. At the time I only got to a typewriter, Royal make, serial No. KHM 2203446 serial number.

'Q. Where was it? Do you recall what type it was?

'A. Yes, sir. It was on the right front floorboard. There's also a Panasonic tape recorder on the front seat between the operator and the right front passenger. On this was 'Mechanicsville No. 2' on the front. It was a model RQ-555, serial No. 6688. At this time, with the observation of 'Mechanicsville No. 2' it was decided to hold the occupants and operator of the vehicle and transport them to the Waldorf Barracks for questioning as to the articles in the car. There was a discussion between the other troopers at this scene and the occupants and operator of the '59 Ford. As to the conversation I was not close enough to hear much, if any, of it.

'Q. What other articles do you have on that paper?

'A. The other articles were taken out of the vehicle in the Barracks 'H' Waldorf Barracks' garage in the center bay. Due to the coldness of the weather we put it in the garage and the convenience of the lighting, whereby I took out an Ealing Film Loop, Super Technicolor Projector, model No. 810, serial No. 213946H.

'Q. Where was that article at?

'A. This was on the floorboard in the right rear of the vehicle. It also had 'Mechanicsville' on the back of it. Also on the floorboard in the right rear was a Standard Projector, Model No. 500-C2, Serial No. 37519. Also, which I stated earlier, was a General Electric UHF-VHF television. The body was of metal. It was of a tannish-beige color with an off-white rim around it. I did not take the serial number of this, nor the model number. From there I went to the rear of the vehicle. It was asked if anyone had the keys to the trunk. I had gone inside where the defendants were. they came out and the operator, James Sutton, attempted to open the trunk voluntarily and without coerce or any threats or promises to him to open the trunk. His attempts failed. He offered the key to me. I attempted twice and was unable to get it open. He asked for a crowbar, said he would willfully pry open the trunk. Due to some black cordage hanging out of the trunk, the lid was rather tight against the lock. We did not get a crowbar or any implement for prying it open. Trooper Lawrence attempted to open it and failed also.

'At this time, I asked for the keys back. I faced the lock and asked Trooper Lawrence to push down on the trunk as hard as he could. This time the trunk did have enough leeway and did come open.

'Q. Was the defendant Sutton there at that time?

'A. James?

'Q. James Thomas Sutton.

'A. Yes, sir.

'Q. Were the other defendants there at the time?

'A. No, sir. The other three were in the barracks at the time. This time the other troopers and defendant James Sutton went back into the barracks. I continued my inventory of the vehicle. In the trunk I found an Oscar-Smidth Autoharp. It was black in color and it had some paint speckles. It looked like they were probably aluminum over it and cased. No further description on it, no serial number. This was in the left-this was on the left side of the trunk.

'Also in the trunk were two more General Electric UHF-VHF television sets which I took out also. By some matting where the spare tire would be, I found one Wollensak 3-M, vinyl-type record case containing one empty Scotch 3-M recorder reel; one Peabody Language Development kit, level No. 1, and the title was Six Favorite Fairy Tales. Also one electric tape recorder connection drop cord. There was also two audio cord for the television and one black extension cord. Of the television sets, I did not take any model or serial numbers. However, i did notice at the time that the television sets apparently had been bolted down by four bolts on the underneath of the case. Apparently, they had been pried since the bolt connections, the holes themselves had been extended as if they had been pried off and the bolt or screw or attachment device pulled through it. There were scratches as of an instrument used to pry them.

'At this time I checked the other television sets, all of the television sets showed same signs. Also one of them on the back there is a device, a rack, more or less, for winding the extension cord on. One of these was broken. The rack itself was found in the vehicle also in the trunk.

'At this time I went back into the inner part of the vehicle and on the right floorboard in the rear I found one black crowbar, two pairs of pliers, and I'm not sure, but I believe there was also a screwdriver on the floor. * * *'

While counsel did object to testimony concerning the merchandise at the trial, citing Maryland Rule 729, there was no objection to the court taking testimony concerning the validity of the arrest in the presence of the jury. Since there was neither objection to this procedure below, nor contention concerning it on appeal, we will not consider whether or not the procedure constituted reversible error. See Winebrenner v. State, 6 Md.App. 440, 251 A.2d 610, and Robinson v. State, 4 Md.App. 515, 521, 243 A.2d 879.

In the recent case of Johnson v. State, 8 Md.App. 28, 31, 257 A.2d 756, 759, we reviewed the current state of the law on searches of automobiles:

'It is well settled that an automobile, unlike a dwelling or person, may be searched without a warrant where there is probable cause to believe that the auto harbors 'the instrumentality of a crime or evidence pertaining to a crime.' Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, at page 221, 88 S.Ct. 1472, at page 1475, 20 L.Ed.2d 538. The right so to search an automobile, or other movable vehicle, does not depend on whether the searching officers first had probable cause to arrest the driver or other occupant. In Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, the first warrantless automobile search case to be decided by the Supreme Court, Chief Justice Taft said:

'The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for the belief that the contents of the automobile offend against the law. The seizure in such a proceeding comes before the arrest, * * *.' 267 U.S. at 158-159, 45 S.Ct. at 287.

'Although Carroll brought into question the constitutional validity of a federal statute which permitted agents to search automobiles without a warrant where they had probable cause to suspect the carriage of contraband, the fact that the Court found the statute constitutional permitted law enforcement agents to conduct this type of search even where no authorized by statute. Such a search was hpheld by the Supreme Court in Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879, where the transportation of liquor was again involved, and the rationale of Carroll and Brinegar was again approved in Dyke.

'Carroll and cases following it have been recognized by us as authority for searches...