Wells v. State

• Decision Date: 22 October 1964
• Docket Number: No. 22,22
• Citation: 236 Md. 381,203 A.2d 912
• Parties: Ernest B. WELLS v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 381

236 Md. 381

203 A.2d 912

Ernest B. WELLS v. STATE of Maryland.

No. 22.

Court of Appeals of Maryland.

Oct. 22, 1964.

Leonard J. Kerpelman, Baltimore, for appellant.

R. Randolph Victor, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., William J. O'Donnell and Stanley S. Cohen, State's Atty., and Asst. State's Atty., respectively, for Baltimore City on the brief), Baltimore, for appellee.

Before HENDERSON, C. J., and HAMMOND, PRESCOTT, HORNEY and MARBURY, JJ.

HORNEY, Judge.

In this prosecution for a violation of the narcotic drugs statute, the principal questions on appeal relate to the legality of the arrest of the defendant (Ernest B. Wells), the legality of his punishment as a subsequent offender and the constitutionality of the sentence imposed on him as a multiple offender. Other questions concern the admissibility of an oral confession, the manner of its obtention, and its free and voluntary character. Still other questions involve the propriety of limiting the cross-examination of a state witness. Lastly, it is suggested that the evidence was insufficient to sustain the verdict of guilty.

On December 11, 1963, an officer of the narcotics squad received information from Charles Ridgely, an informer he had known for more than ten years, concerning the daily activities of the defendant with respect to the sale of heroin. The information given was to the effect that the defendant resided at 3611 Windsor Mill Road in a first floor rear apartment, that a telephone was listed in his name at that address, that every morning between 9:00 and 10:00 a. m. the defendant left his apartment to go to the home of his mother at 1720 Brunt Street, and that during these visits the defendant carried a supply of heroin in bundles bound with a rubber band. The officer had known the defendant before his arrest and knew that his mother resided on Brunt Street.

The next morning two officers of the narcotics squad placed the premises at 3611 Windsor Mill Road under surveillance. At about 10:00 a. m. they observed the defendant leave the house by the right rear steps and walk up the street toward the 3500 block where he was approached by the officers. Upon being asked where he was going, he stated he was going to his mother's house. And when he was asked if he was carrying and narcotic drugs, he stated no. But a search of his pockets revealed a bundle of glassine bags wrapped in a rubber band, the contents of which were subsequently found to be heroin. After his arrest, the defendant was immediately taken to the narcotics squad office where, having acknowledged that his interrogator knew all about his selling activities, he frankly admitted dealing in narcotics.

At the trial, one of the arresting officers testified that no force or coercion was used by the police in questioning the defendant and that no threats or promises were made to him. The testimony also disclosed that the defendant refused to sign a written statement when asked to do so. Further testimony showed that the informer had given reliable information to the police on at least three former occasions. When the defendant took the stand in his own behalf he denied having made any oral statements to the officers, but admitted numerous prior convictions for larceny, assault, robbery and shoplifting.

(i)

The defendant, citing Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), contends that his arrest, and the search and seizure incident thereto, were illegal because the arrest was based on a mere conclusion that he possessed narcotics. We do not agree.

In the case at bar, as in Murray v. State, Md., 203 A.2d 908 (1964), we are confronted with the problem of what constitutes probable cause for arrest and a coincidental search and seizure. We dealt at length with the question there and we see no reason to consider it further here. Although the facts of the two cases are somewhat different, we think that the facts in this case, as they did in Murray, warrant a finding that the officers had probable cause to believe a felony was being committed in their presence and were therefore justified in making the arrest and the subsequent search and seizure.

Here, where the information was received from known reliable informer, it was accurate as to the residence of the defendant and as to his habit of leaving his apartment at a precise time to go to the home of his mother. These factors, together with the fact that the defendant was known to the officers as a previous narcotics violator, were sufficient to constitute probable cause for the arrest.

Although the defendant contends that the holding in Aguilar requires us to find that his arrest was unlawful, we find nothing therein remotely analogous to the situation here. On the contrary, that case is clearly distinguishable from this on the facts. In Aguilar, where a warrant was issued on an affidavit which merely stated that the officer had received 'reliable information from a credible person that narcotics were being kept on a certain premise,' it was held that an affidavit that disclosed only an unidentified informant and that the information was based on suspicion or an opinion, without showing that the informant spoke with personal knowledge, was an insufficient showing of probable cause to justify the issuance of a warrant. Whether or not probable cause for arrest exists depends, of course, on the facts and circumstances in each case. When, however, the facts in Aguilar are compared with the circumstances here, it is apparent that the information the officers received in this case was such as only the informer would have known. See Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), where the information received from an informer was quite similar to that given by the informer in this case.

(ii)

In essence the second contention of the defendant is that he could not be punished as a 'subsequent offender' within the meaning of Code (1957), Art. 27, § 300, as amended by Ch. 772 of the Laws of 1963, because changing the grade of narcotic offenses from misdemeanors to felonies had the effect of making the multiple offender aspects of the law applicable only to previous 'felony' violations. The third contention is that the sentencing of a person addicted to the use of narcotics (when he may be unable to resist using narcotics) is violative of the constitutional prohibitions against cruel and unusual punishment. Similar questions were presented and decided adversely to the defendant in Murray v. State, supra, and there is no reason to say any more here than what we said there other than to repeat that it is immaterial whether the prior convictions were for a misdemeanor or for a felony. Since the defendant in this case, according to the record, was a seller and not a user of narcotics, it can hardly be said that he was under compulsion to continue selling narcotics.

(iii)

The questions concerning the oral confession involve three separate contentions, one of which, the first--that the confession was the fruit of an illegal arrest--need not be considered since we have held that the arrest was lawful. The second contention is that the admission of the confession was a denial of due process in that the State was not required to meet its burden of proving voluntariness by showing some reason why a signed confession was not obtained. The third...