Mullaney v. StateMullaney v. State
- Reporters:
- , ,
- Before:
- Murphy
delivered the opinion of the Court.
Appellant was found guilty by a jury in the Circuit Court tor Baltimore County of possession and control of narcotics (cannabis), and was sentenced by the court to five years under the jurisdiction of the Department of Correction. On this appeal he contends that the trial court erred when it denied his pretrial motion to suppress evidence seized at the time of his arrest, and in admitting such evidence over his objection at the trial.
The Motion To Suppress Evidence
Appellant moved to suppress as evidence in the case approximately eight pounds of cannabis (marihuana) and other related tangible items seized at the time of his arrest, as well as certain incriminatory admissions which he made to the police shortly after his arrest. The motion was based on the ground that appellant had been unlawfully arrested and that the warrantless search of his room and person, and the taking of his oral statements were illegal as comprising the fruits of an illegal arrest in violation of the Fourth Amendment to the Federal Constitution.
A hearing was held on appellant’s motion out of the presence of the jury, at which time Lieutenant Thomas Mitchell of the Baltimore County Police Bureau, Narcotics Squad, testified that at 9:30 p.m. on August 2, 1967, he “received information” while at his home from Detective Kratsch of the Baltimore City Narcotics Squad, as the rеsult of -which he went to the Penn Motel in Baltimore County, arriving there at 10 :00
p.m-.;
1
that he there checked the register “which verified some of the information that I had received from the City”; that he ascertained that appellant was registered in room #222 and that while he did not know him, he had his description as being a white male, twenty to twenty-two years old, 5’ 8“, 140 pounds, long brown hair and bearded; that he went to his room, knocked on the door and, after failing to receive an answer, he left and kept the room under surveillance; that fifteen minutes later, a person answering appellant’s description, and two other men, entered room #222; that after waiting approximately fifteen minutes, he (Lieutenant Mitchell) and two other police officers, knocked on the door of appellant’s room; that in response to an inquiry from within the room as to “who was there,” he (Mitchell) said “Tommy Carroll”; that one of the occupants of the room, later identified as Richard Mainolfi, then opened
Lieutenant Mitchell had neither a search warrant nor an arrest warrant when he went to the motel. He testified on cross-examination that his purpose in stating that he was Tommy Carroll was “to get them to open the door.” 2 He further testified that he felt he had sufficient cause to enter the room based on “the information and the specific way it was received by Detective Kratsch, and the description of the subject and the subject was there”; that he had “the information and the detail of the information how it was secured from Detective Kratsch, whom I’m very familiar with and with whom I have worked on a lot of occasions, and he gave me this information”; and that he knew that Kratsch’s information had been obtained from an informer of whose reliability he (Mitchell) had no knowledge.
The court denied appellant’s motion to suppress, holding that the evidence indicated that Mitchell “had received from Officer Kratsch information that the defendant was involved in transr portation and possession of marihuana,” and that it was with “that information at hand” that Mitchell went to the motel, having theretofore been provided with appellant’s detailed description. The court ruled, alternately, that even if Lieutenant Mitchell did not have probable cause to arrest at the time he went
The constitutional validity of the search and seizure manifestly depends upon the constitutional validity of appellant’s arrest. And whether an arrest for a felony without a warrant is constitutionally valid necessarily turns upon whether, at the moment the arrest was made, the arresting officer or the police acting as a team had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was сommitting a felony.
3
McCray v. Illinois,
386 U. S. 300;
Beck v. Ohio,
379 U. S. 89;
Draper v. United States,
358 U. S. 307;
Parrota v. State,
233 Md. 526;
Simms v. State, 4
Md. App. 160. Where, as here, the constitutional validity of the warrantless arrest was properly challenged by a pretrial motion to suppress evidence, it is the function of the court to determine for itself the persuasiveness of the facts relied upon by the police to show probable cause for the arrest —a function which it manifestly cannot perform unless it is informed of the facts upon which the arresting officer acted. See
Beck v. Ohio, supra; Giordenello v. United States,
357 U. S. 480;
Farrow v. State, supra; Edwardsen v. State,
231 Md. 332. Evidence to show the basis upon which the arresting officer acted in making the arrest, including the nature and details of information received from other law enforcement officers and/or infоrmants, is not only relevant and admissible on the issue of probable cause, but must affirmatively be shown if the State is to carry its burden of proving the legality of the arrest. See
Hopkins and Terry v. State,
239 Md. 517;
Veihmeyer v. State,
3 Md. App. 702;
Scott v. State,
3 Md. App. 429. Where the arrest is initiated on hearsay information received from an informant, the State, to establish its legality where challenged, must sufficiently inform the trial judge of some of the under -
Thus, in Draper v. United States, supra, the Supreme Court held that in testing the sufficiency of probable cause for a warrаntless arrest, the arresting officer may rely upon information received through an informant, rather than upon his direct observations, so long as the informer’s statement is reasonably corroborated by other matters within the officer’s knowledge. In that case, a “special employee” of the Bureau of Narcotics (in reality a paid government informer), who had previously given reliable information, told federal agents that the defendant, whom he described, was peddling narcotics, and that he would be at a designated place on a designated date with a tan zipper bag and would be carrying narcotics. The defendant, being observed by federal agents under conditions which accorded precisely with this information, was arrested and the arrest was upheld solely upon the informant’s detailed statement that the defendant was peddling narcotics, as corroborated by the fact that the informant’s description of the defendant’s appearance, and of where he would be at a particular time — matters in themselves totally innocuous — agreed with the arresting officer’s observations (thus providing a substantial basis for crediting the hearsay).
In
Beck v. Ohio, supra,
the defendant was arrested without a warrant for violating the gambling laws. By pre-trial motion the defendant moved to suppress evidence seized frоm his person at the time of his arrest. To establish the legality of the arrest the State called the arresting officer as its sole witness. He testified that he had “a police picture” of the defendant and
In McCray v. Illinois, supra, the defendant was arrested on the street without a warrant for possessing narcotics. A motion to suppress the evidence having been filed, it was incumbent upon the State to establish probable cause for the arrest. To this end the two arresting officers each testified in considerable detail that they had talked with an informant on the morning of the arrest who had told them that defendant was then selling narcotics at a particular place and at a particular time; that the informant pointed out the defendant to the officers; and that when the defendant saw the police car, hе hurriedly walked away. The officers testified that they had been acquainted with the informant for over a year, that he had supplied them with information about narcotics activities over fifteen times, and that this information had proved accurate and resulted in numerous arrests and convictions, which the officers specifically delineated in open court. In upholding the legality of the arrest, the court found that each of the officers had testified with specificity as to what the informer actually said and why the officers thought the information was credible.
In capsule form then the correct rule is as stated in
Hwnd
Applying these рrinciples to the evidence introduced at the hearing on the appellant’s motion to suppress, we hold that the State failed to show probable cause for the arrest prior to the time that the officers knocked on the door to appellant’s room. All that the evidence shows is that lieutenant Mitchell received undisclosed and unspecified information from a reliable police officer, as a result of which he immediately went to the Penn Motel, ascertained that appellant, whose description he somehow had, was registered there, and observed him and two others enter his room at the motel. There was nо evidence to show that Lieutenant Mitchell had been informed by anyone or that he had any personal information on his own, that appellant had committed or was committing a crime, or even that he was suspected of committing a crime. It is, of course, possible that the police, acting as a team, had probable cause to make the arrest prior to the time that they knocked on appellant’s door. See Jones v. State, 242 Md. 95. But the State’s failure to prove it by proper evidence at the suppression hearing compels us to conclude that the trial judge erred in his ruling that probable cause existed for the arrest prior to thе time that Lieutenant Mitchell knocked on appellant’s door.
We agree, however, with the alternative conclusion reached by the trial judge at the conclusion of the hearing on the motion to suppress, namely that Lieutenant Mitchell had probable cause to arrest appellant when the door to his room was opened
Appellant places reliance on Johnson v. United States, 333 U. S. 10. In that case federal officers received information from a confidential informer that “unknown persons” were smoking opium in a designated hotel and that it could be smelled in the hallway. Federal agents went to the hotel, smelled the odor of burning opium and traced it to a particular room. Without knowing who was the occupant or occupants of the room, the officers knocked on the door and when the defendant opened it, they еntered and initiated a search for incriminating evidence. The court held that the entry, search, seizure and arrest were illegal, finding that the validity of the arrest depended upon the fact that the defendant was the sole occupant of the room, a fact ascertained by the officers only after they had effected entry into the room under color of legal authority. Unlike Johnson, there was no entry made into the appellant’s room until after the arresting officer had probable cause, supported by visual observations in addition to smelling the burning marihuana, to believe that a felony was being committed, and that appellant, previously known to him to be within the room, was one of the felons. Probable cause to arrest then existing, the evidence subsequently seized was properly admissible.
II
The Evidence of Probable Cause to Arrest Adduced at Trial’
At the trial, Tommy Carroll testified that on August 2, 1967 at approximately 3:30 p.m. he drove appellant to the Penn Motel and that the appellant then had a suitcase with him and said it contained marihuana.
Lieutenant Mitchell testified to the same facts that he testified to at the hearing on the motion to suppress, but with these
The trial judge, in overruling appellant’s trial objection to the admission of the incriminating marihuana evidence found in the motel room, stated that the arrest was lawful because Kratsch was himself a reliable informer; that he in turn had received the information from a named informer, and that it was not essential for the State to show other than that Kratsch was a reliable person and that the information furnished by him to Lieutenant Mitchell in other cases had been reliable.
Without question, the observations of fellow law enforcement officers constitute a reliable basis in the assessment of whether probable caus;fe to arrest exists.
United States v. Ventresca, supra; Rugendorf v. United
States,
supra.
Equally well settled is thе proposition that probable cause to arrest may be based on information collectively within the knowledge of the police.
Farrow v. State, supra.
In
People v. Horowitz,
233 N. E. 2d 453, the Court of Appeals of New York stated at page 455 that “it is not necessary for the officer making the arrest to know of the reliability of the informer or to be, himself, in possession of information sufficient to constitute probable cause provided that he acts upon the direction of or as a result of communication with a superior or brother officer or another police department provided that the police as a whole were in possession of information sufficient to сonstitute probable cause to make the
In Draper and McCray, the informer was himself the source of the information that a crime was being committed by the person to be arrested, and the informer’s reliability was clearly established by the evidence. Here, the true source of the information was not Officer Kratsch. Insofar as the record shows, he was but a conduit of the information, and while his reliability was established, the reliability of his informer was not. The State’s failure to establish the reliability of Kratsch’s informant is unexplained in the record. Under these circumstances, we entertain considerable doubt that, even with the additional evidence adduced at the trial itself, the arrest can be justified as one based on the existence of probable cause prior to the time that Lieutenant Mitchell knocked on the door to appellant’s room. 5
We hold, however,- that the evidence, both at the suppression hearing and at the trial itself, did demonstrate the existence of probable cause for Lieutenant Mitchell to make the arrest at the time that the door was opened to appellant’s room and, consequently, the arrest being lawful, the search and seizure made incident thereto were likewise lawful, and the incriminating evidence was properly introduced. In so concluding, we have considered appellant’s ‘argument that the trial court erred in per
Ill
Admissibility oj Appellant’s Incriminating Admissions
The evidence adduced both at the hearing on the motion to suppress and at the trial before the jury showed that immediately following his arrest, the police gave appellant the specific four-fold warning required under Miranda v. Arizona, 384 U. S. 436. The police then specifically inquired whether the appellant, “having these rights in mind,” wanted to talk to them. Detective Thomas Manzari, one of the arresting officers, testified that appellant “shook his head like he understood”; that “he just nodded his head in a yes position,” but that he said nothing. Lieutenant Mitchell testified that appellant made no request at his motel room to call an attorney, and while he appeared sullen and angry, he was not under the influence of narcotics. The officers placed appellant in a police car and although they “needled” him about the loss he would sustain and asked him questions, he didn’t resрond at all until, while on the way to the police station, he stated in response to a question that the marihuana belonged to him and that he had just arrived from California with it.
Appellant contends that after the
Miranda
warnings were read to him, he was not afforded an opportunity to make a phone call to an attorney before the officers questioned him in the police car. He further contends that he was under the influence of narcotics when questioned and that his incriminating statements were therefore involuntarily made and should not have been admitted in evidence at the trial. These objections were made both at the suppression hearing and at the trial and, although only obliquely mentioned, the broader objection was in substance made that there was no waiver of his
Miranda
As there is no evidence in the case to show that appellant was under the influence of narcotics when arrested, or that he made any request to call an attorney before being questioned in the police car, we And no basis for excluding the incriminating admissions on these grounds. But questioning appellant in a police car under the circumstances here involved clearly constitutes “custodial interrogation” within the meaning of
Miranda (Myers v. State,
3 Md. App. 534), and calls in question the applicability of the holding in
Miranda
that “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained,” nor will “failure to ask for a lawyer * * * constitute a waiver” (at page 475).
Miranda
made it quite clear that, if after the warnings required by that decision have been given, custodial interrogation is undertaken without the presence of an attorney, and a statement is obtained, “a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self incrimination and his right to retained or appointed counsel” (at page 475). And equally plain frоm
Miranda
is the flat holding at pages 475 and 479 that no evidence obtained as a result of a custodial interrogation can be used against an accused unless and until the prosecution demonstrates a waiver of constitutional rights within the meaning of
Johnson v. Zerbst,
304 U. S. 458, a case which holds that waiver of a fundamental constitutional right is ordinarily “an intentional relinquishment or abandonment of a known right or privilege,” the determination of which “must depend in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” As we recently stated in
Brown v. State,
3 Md. App. 313, 321, the ultimate determination of whether the aрpellant knowingly and intelligently waived his
Miranda
rights before making a statement is governed by whether the particular facts and circumstances involved in the case are such as demonstrate an intelligent and intentional relinquishment or abandonment of a known right or privilege. But it has been held that an ex
The record before us discloses that appellant was twenty years of age and a high school graduate. As heretofore indicated, there was nо evidence that he was under the influence of narcotics or that his intellectual endowments were in any way impaired at the time of his interrogation. There was no evidence that he was subjected to physical coercion during his interrogation or that he was subjected to any psychological coercion at any time beyond the fact that the police “needled” him after his arrest. Appellant had been caught red-handed by the police, knew that the incriminating evidence had been seized from his motel room, and undoubtedly appreciated the magnitude of his predicament. He was subjected to interrogation in a poliсe car rather than in the more compulsive atmosphere of the station house. And from the testimony, the trier of fact could find that appellant understood the import of the Miranda warnings and knew that he had a right to remain silent and to have counsel present during any police interrogation.
Despite the fact that the testimony does not show an express waiver of appellant’s right to remain silent and to counsel, we hold that the totality of the circumstances — the attendant facts of the case — are such as implicitly show that appellant voluntarily and intelligently relinquished these rights when he made his incriminating admissions. See United States v. Hayes, supra; Brozan v. State, supra; Scott v. State, 3 Md. App. 429. We therefore find no error in their having been admitted in evidence.
IV
The Court’s Instructions to the Jury
Appellant contends that the trial judge erred in three particulars in his instructions to the jury. As we have by our opinion heretofore approved the substance of two of the challenged instructions, we need not further discuss them. The remaining objection is based on appellant’s argument that the trial judge erred
Appellant now expands on the reason for his exception by maintaining that the legality of the “police team” cоncept of probable cause depends upon a satisfactory evidentiary showing of the details of the informer’s statement, and that such details were not in evidence in this case. In effect then, appellant does not contend that the court misstated the law in its instructions, but rather that the challenged instruction had no application to the evidence adduced at the trial.
Maryland Rule 756 f provides that a party having an objection to any portion of any instruction given, or to any omission therefrom, shall before the jury retires to consider its verdict, make such objection “stating distinctly the portion, or omission, or failure to instruct to which he objects and the ground of his objection.” We think it apparent that the ground of appellant’s objection made at the conclusion of the court’s instructions was not sufficiently distinctive to warrant review on appeal. We nevertheless note that the challenged instruction was given in the context of “what information” the arresting officers had “the moment they entered the room”; that the court defined probable cause as existing “where the facts and circumstances within the police officer’s knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense had been or is being committed”; and that the court qualified its instruction by telling the jury that “Common rumor, reports, suspicions, even though strong, are not sufficient to support an arrest and a search and seizure.” Considering the
V
Sufficiency of the Evidence to Go to the Jury
Appellant contends that the trial court erred in denying his motion for judgment of acquittal at the conclusion of the case. We disagree. In order to overturn a judgment entered on the verdict of a jury for insufficiency of the evidence, it is necessary that there was no legally sufficient evidence, or inferences drawable therefrom, on which the jury could find an accused guilty beyond a reasonable doubt. Quinn v. State, 1 M‘d. App. 373. The record before us discloses no such deficiency of evidence.
Judgment affirmed.
Notes
. The court sustained appellant’s objection to Lieutenant Mitchell relating the substance of the information that he had received from Detective Kratsch. For reasons hereinafter set forth, the court’s ruling in this regard was erroneous.
. No evidence was adduced at the suppression hearing to shed light on the identity of Tommy Carroll.
. Where the arrest is made for a misdemeanor, the test to determine the legality of the arrest is whether the misdemeanor was committed in the officer’s presence. Robinson v. State, 4 Md. App. 515; Shelton v. State, 3 Md. App. 394.
. The Supreme Court made it crystal clear in McCray v. Illinois, supra, that there is no requirement, constitutional or otherwise, which compels disclosure of the informant’s identity on a hearing to determine the question of probable cause for an arrest or search. Cf. Roviaro v. United States, 353 U. S. 53, involving the disclosure of an informant’s identity at the trial when the issue is the guilt or innocence of the accused.
. Having failed to establish such probable cause at the suppression hearing, a question arises as to whether the State should be afforded another opportunity to do so at the trial before the jury. As we find probable cause to arrest to exist for other reasons, we need not consider the question on this appeal.