Walters v. State

• Decision Date: 28 January 1970
• Docket Number: No. 220,220
• Citation: 261 A.2d 189,8 Md.App. 583
• Parties: Robert Ernest WALTERS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 583

8 Md.App. 583

261 A.2d 189

Robert Ernest WALTERS v. STATE of Maryland.

No. 220.

Court of Special Appeals of Maryland.

Jan. 28, 1970.

Perry A. London, Baltimore, for appellant.

James F. Truitt, Jr., Asst. Atty. Gen., with whom were Francis B. Burch. Atty. Gen., Charles E. Moylan, Jr., State's Atty., Harriette Cohen and Gerald A. Kroop, Asst. State's Attys. for Baltimore City, on brief, for appellee.

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

ORTH, Judge.

Robert Ernest Walters (appellant) and Dennis Logan, separately indicted, were jointly tried at a court trial in the Criminal Court of Baltimore for violation of the narcotic laws. Appellant was convicted of possession and control of heroin, ¹ and a general sentence of 2 years was imposed. He claims that evidence was admitted against him in error.

Officer Steven Miller of the Tactical Section, Baltimore

City Police Department, testified that while in uniform driving a marked police cruiser in the company of Officer Nolan he received information over the police radio about 11:20 P. M. on 26 June 1968, as a result of which he drove to North and Linden Avenues. He saw three men, two of whom he identified as appellant and Logan, leaning against a red car. He was about 25 feet from the men and the lighting conditions were 'pretty good.' The men walked to a doorway of a store. The officer saw appellant hand Logan something-'it was white, whatever it was'-and Logan 'placed it in the back of his belt. * * * At this time based on the call that we had, we wanted to question them about it. * * * (T)hey came out of the doorway and started walking toward us. At this time Mr. Logan was trying to walk north across North Avenue and the other two gentlemen went west. I stopped Mr. Logan and Officer Nolan went up the street after the other two. * * * And at this time when I stopped Mr. Logan and asked him about the car, well, a pill fell out on the ground. ² * * * (I)t was a gelatine capsule with white powder in it.' At the time Logan was not under arrest-'I wanted to ask him about the car * * * based on the reason why we came down there. * * * He was fidgety and he kept his right hand near his back pocket.' Having experience with narcotics before the officer thought 'it might have been it. * * * (T)he capsule started to roll and I stuck my foot down to stop it, but I smashed it. * * * I said what did he have in the back of his belt. So at this time he reached around and handed me a handkerchief. And I took it and opened it up and it was a whole bunch of capsules in it.' The officer then arrested Logan and searched him but no other contraband or weapons were found. And specifically there was nothing else in the back of his belt. Logan told the officer that the handkerchief and capsules did not belong to him. Objection was sustained to further inquiry with respect to what Logan said about the capsules. It was established that there were 19 capsules, that the white powder contained therein was analyzed and that it proved to be heroin. Timely objection was made to the admission of the capsules.

Logan testified on the question of the search and seizure. He said when he saw the officers and started to walk away from them, Miller told him to halt, stepped in front of him and asked what he had-'I was, you know, kind of fidgety at the time.' Logan said he did not have anything and the officer patted him down. On cross-examination he said appellant had put something in his pants pocket, back of his belt. 'I knew what it was because I have seen him pass things around before and I had a hunch what it was.' He said he lied to the officer because '(s)omebody put some stuff on you and you know you can't get away with it, you try to do something.' He knew he had the capsules in back of his pants but did not want the officer to know it. He said he did not see a capsule roll on the ground or the officer put his foot on it. He denied he had been leaning against a car-'it was raining too hard, that's why.' He admitted being in the doorway of a five and ten cent store which was closed. In answer to inquiry by the court he said he suspected what was in the handkerchief appellant stuck in his pants. Asked if he tried to get rid of it, he said, 'It was caught up between the back of my pants and the outline of my underclothes. * * * I had my hand back there. I couldn't get it out the back of my pants.'

The third man observed by the officer, Gregory Way, was produced by Logan. Way said that when the police approached he saw appellant put something in the back of Logan's pants.

Appellant offered no evidence on the issue nor did he argue it even though asked by the court if he desired to be heard. The court overruled the objection to the admission of the capsules as to appellant, saying 'I can't see where (Walters) has any standing to contest the search * * *.' However, the court sustained the objection to the admission of the evidence as to Logan and the propriety of the court's action as to appellant must be considered within the frame of reference of its findings with regard to Logan. The court first found that there was no evidence sufficient to establish that the information received by the police over the radio constituted probable cause for the arrest of Logan. The State made no effort to develop what information was received and on the state of the record it is obvious that the arrest could not be supported on the basis of the information received by the arresting officer by the police broadcast. ³ The court then found that Logan was in restraint when the officer stood in front of him 'and that even though the pill fell out after that that technically the search would have been illegal because the initial happening between the two of them was not such as to support a subsequent search.' The State then argued that when the officer saw the pill which apparently had fallen from the possession of Logan, there was probable cause for the arrest and the subsequent search was reasonable as incident to a lawful arrest then made. For support of the State's argument see Kalandras v. State, 6 Md.App. 480, 251 A.2d 620; Reagan v. State, 4 Md.App. 590, 244 A.2d 623. The court then said:

'Well, I am going to have to go one step further, which I really didn't intend to go, but I have to believe that the pill fell from the pocket or fell from the belt and the officer testified that this was in the condition it is now and that is inside-they were all inside of a plastic container and then inside a handkerchief and I suppose it is possible, but I find it difficult to believe beyond a reasonable doubt that the pill fell out. So, since it is necessary to make that ruling, I will include that in my findings * * *.'

We can only construe these remarks of the court to mean that in order to find a subsequent legal arrest it would have to believe that the pill fell from Logan's possession. This factual posture, therefore, led inevitably to the conclusion that there was no probable cause for the arrest of Logan and that the seizure of the capsules from his person was unreasonable, not being supported by a lawful arrest. ⁴ We have no fact finding function, the weight of the evidence and the credibility of the witnesses being matters for the trier of fact. ⁵ Thus if we are to determine that the challenged evidence was properly admitted against appellant, we cannot do so on the ground that its seizure from Logan was reasonable as incident to Logan's lawful arrest, for on the facts found by the trial court, it is clear that the arrest was unlawful. The lower court ruled the capsules to be admissible against appellant despite the illegality of their seizure because appellant had no standing to object. Appellant now urges that he did have standing to object, relying on McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 and Kleinbart v. State, 2 Md.App. 183, 234 A.2d 288.

The exclusion of evidence otherwise competent but gathered by police in violation of the Fourth Amendment is a means for making effective the protection of privacy. It is firmly established that the rights assured by the Fourth Amendment are personal rights that may be enforced by exclusion of evidence only at the instance of one whose protection was infringed by the search and seizure. Simmons v. United States, 390 U.S. 377, 389, 88 S.Ct. 967, 19 L.Ed.2d 1247. The rule was stated in Jones v. United States, supra, 362 U.S. at 261, 80 S.Ct. at 731:

'In order to qualify as a 'person aggrieved by an unlawful search and seizure' one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else. * * * Ordinarily, then, it is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed that he establish, that he himself was the victim of an invasion of privacy.'

This same principle was acknowledge in Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154, and Simmons v. United States, supra. In Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176, decided 10 March 1969, the Court expressly adhered to those cases and 'to the general rule that Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.' At 966-967. The Court thought there was 'a substantial difference for constitutional purposes between preventing the incrimination of a defendant through the very evidence illegally seized from him and suppressing evidence on the motion of a party who cannot claim this predicate for exclusion.' At 967. At one time a defendant who wished to assert a ...