Wescott v. State

• Decision Date: 23 February 1971
• Docket Number: No. 382,382
• Citation: 11 Md.App. 305,273 A.2d 824
• Parties: Walter Leon WESCOTT v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 305

11 Md.App. 305

273 A.2d 824

Walter Leon WESCOTT v. STATE of Maryland.

No. 382.

Court of Special Appeals of Maryland.

Feb. 23, 1971.

Leroy W. Carroll, Baltimore, for appellant.

Joseph P. Stafford, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Howard L. Cardin, State's Atty. for Baltimore City and Joseph B. Harlan, Asst. State's Atty. for Baltimore City, on brief, for appellee.

Argued before ANDERSON, ORTH and POWERS, JJ.

ORTH, Judge.

The question in this case is whether the warrantless arrest of Walter Leon Wescott on 15 January 1970 was legal. Effective 1 July 1969 a police officer has statutory authority to arrest without a warrant. Acts 1969, ch. 561, § 3. Code, Art. 27, § 594B(c) provides:

'A police officer may arrest a person without a warrant if he has probable cause to believe that a felony has been committed or attempted and that such person has committed or attempted to commit a felony whether or not in his presence or view.'

For the purposes of the section a 'police officer' includes 'any person who, in his official capacity, is authorized by law to make arrests and who is * * * (a) member of the Baltimore City police department * * *.' Code, Art. 27, § 594B(f)(2). Probable cause within the contemplation of the statute has the same meaning it had under the common law rules of arrest without a warrant long followed in this jurisdiction. Rife v. State, 9 Md.App. 658, 663, 267 A.2d 326. ¹ In Cleveland v. State, 8 Md.App. 204, 259 A.2d 73, we discussed probable cause in the context of belief that a felony has been committed and that the person arrested committed it. We said, at 218-219, 259 A.2d at 82:

'Probable cause exists in this context when the facts and circumstances within the knowledge of the arresting officer, or of which he had reasonably trustworthy information, are sufficient to warrant a reasonably cautious person in believing that a felony had been committed by the person arrested. Michaels v. State, 2 Md.App. 424, 234 A.2d 772. The rule of probable cause is a non-technical conception of a reasonable ground for belief of guilt, requiring less evidence for such belief than would justify conviction, but more evidence than that which would arouse a mere suspicion. Terrell v. State, 3 Md.App. 340, 239 A.2d 128. Only the probability, and not a prima facie showing of criminal activity is the standard for probable cause. Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d 142. And it is settled that the legality of an arrest is measured by the existence of probable cause at the time of the arrest. Mullaney v. State, 5 Md.App. 248, 246 A.2d 291.'

And see Boddie and Brooks v. State, 6 Md.App. 523, 532, 252 A.2d 290; Simms v. State, 4 MdApp. 160, 167, 242 A.2d 185.

The warrantless arrest of appellant was made in Baltimore City by a police officer who was a member of the Baltimore City Police Department. See Code, Art. 27, § 594B(i). An indictment was returned against appellant and came on for trial in the Criminal Court of Baltimore. At a bench trial he was convicted of having the narcotic drug cocaine in his possession on the day of his arrest. Prior to trial on the merits appellant made a verbal motion to 'dismiss the indictment and for judgment of acquittal on the theory the arrest was unlawful and in violation of the Defendant's constitutional right.' It was agreed that the motion be heard prior to trial. Of course, the illegality of an arrest is no ground for the dismissal of an indictment and we have consistently so held. See Hammond and Couser v. State, 7 Md.App. 588, 594, 256 A.2d 768. And the motion for judgment of acquittal was premature, no evidence having been offered. Rule 755 b. The proper motion would have been to suppress any evidence obtained by a search and seizure made incident to the arrest, for, if the arrest were illegal, the search and seizure would have been unreasonable and thus unlawful. Such motion may be made under the authority of Rule 729 a, under procedures as provided by subsection b 1 and determined by hearing prescribed by subsection d. In any event, we shall treat the motion as one to suppress evidence obtained by an unlawful search or seizure for it is apparent that the lower court so treated it upon ruling on the motion after a hearing. The court considered the evidence adduced with respect to the motion 'in analyzing the problem as to whether or not the court should admit evidence about to be proffered on the theory that there was probable cause for the arrest.' And upon finding that there was probable cause for the warrantless arrest, the court said: 'I will, therefore, overrule your objection and proceed with the trial and introduce whatever evidence that may have been obtained as a result of this arrest. An automatic objection is taken by the Defendant to this ruling.' See Rule 729, §§ e and f.

The only witness who testified on the question of the legality of the arrest was Detective Sergeant Leon N. Tomlin, C.I.D., D., Narcotics Unit, Baltimore City Police Department, a member of the Department since April 1960 and assigned to the Narcotic Unit of the Criminal Investigation Division, since November 1967. He was trained and experienced in investigation of violations of the narcotics laws. 'I graduated from the Federal Bureau of Narcotics Training School in Washington, D. C. I have attended many seminars. I have instructed at numerous seminars given by the Federal Bureau of Narcotics and Dangerous Drugs for the Baltimore City police Department.' He had participated in more than 300 investigations of narcotics offenses. He said the Narcotic Unit was 'Charged with the responsibility now of enforcing narcotic laws aimed at major violators in the Baltimore area.' He had gathered information regarding some of the operation of major narcotic dealers. The sources of that information were the 'Federal Bureau of Narcotics and Dangerous Drugs, the State police officers in the field, Intelligence file from our own office, previous arrest records, Lieutenant Coppinger in the State's Attorney's Squad, and various other investigative sources,' There was a pattern as to the source of supply in this area. '(T)he pattern would be that a major source of supply in the Baltimore area would be in supervision of narcotic drugs for a limited amount of time. He would go to an out of town source, usually.' He was familiar with the name James Thomas Wescott. 'James Thomas Wescott is one of the major suppliers in the Baltimore area of narcotic drugs.' The officer had knowledge of Wescott ² and his operation. His study of the Wescott organization extended back into 1968. He had various sources of information concerning it-'informants that were interviewed, both by myself and Mr. Stewart (an Assistant State's Attorney) and other members of the Organized Crime Division, State's Attorney's office, Federal Bureau of Narcotics and Dangerous Drugs, Officer Herst of the Norfolk, Virginia Police Department, Narcotic Unit, Lieutenant Coppinger, Investigative Squad of the State's Attorney's Office, Baltimore City police officers in the field and files and other investigative sources.' The court found that the witness was qualified as an expert in the field of violations of the narcotics laws.

On 13 January 1970 about 10:00 P.M. Tomlin met with an informer at a prearranged location in Baltimore City. 'I classed the informant as reliable and I based this assessment of reliability on information that had been furnished to myself and other members of the Baltimore City Police Department, members of the State's Attorney's office, that in 1967 led to the arrest and conviction of four individuals for several burglaries, in 1968 the arrest and conviction of six individuals for narcotic violations at four separate locations in Baltimore City, also aware the informant was actively engaged in narcotic traffic and had knowledge of the inner workings of the narcotic traffic in Baltimore City.' The informant gave him information:

'I was told that James Thomas Wescott had informed the informant and other people involved in the sale and distribution of prohibited narcotic drugs in the Baltimore area to get their customers in line, he was ready to make a move. * * * The informant stated this meant that Wescott was going to purchase a supply of narcotic drugs and would probably go to the New York area, had driven and had flown at times, would remain in the New York City area for a couple days and then would return to the Baltimore area. The informant also stated that Margaret Thompson, 2405 Loyola Northway, Apartment 202, would usually leave the apartment at Loyola Northway, drive to 2322 Division Street, the home of her mother, where she would remain while James Thomas Wescott was out of town. * * * That this was the procedure Margaret Thompson usually followed when James Thomas Wescott left the Baltimore area to go out of town and purchase narcotic drugs. She gave us the reason Margaret Thompson was frightened and did not want to stay in the apartment by herself. * * * The informant also stated when Margaret Thompson left Division Street and returned to Loyola Northway, drugs were on the way to Baltimore or in the Baltimore area.'

The name Margaret Thompson was familiar to Tomlin. She had been arrested in November 1968 by Federal narcotic agents in Cleveland, Ohio while in possession of a large quantity of cocaine. He had this knowledge prior to 13 January 1970, having obtained the information through the files of the federal narcotic bureau and the F.B.I. By observation and surveillance in the Loyola Northway area, he learned that Margaret Thompson drove a late model Cougar, dark blue bottom and white vinyl top, Md. License CH-6531. He knew her by sight. On 9 August 1969 he had raided apartment 202, 2405 Loyola Northway and found papers in the names of Wescott and Thompson and male and female clothing from the one bedroom in the apartment. The informant...