Appeal from the Criminal Court of Baltimore; Harris, J.
Brune, C. J., and Hammond, Prescott, Horney and Sybert, JJ., and reargued before Brune, C. J., and Henderson, Hammond, Prescott, Marbury and Sybert, JJ., and Gray, J., Chief Judge of the Seventh Judicial Circuit, specially assigned. Gray, J., by special assignment, delivered the opinion of the Court.
The appellant was convicted in the Criminal Court of Baltimore (Harris, J.) on a charge of assault with intent to rape and two cases of assault involving a perverted sex practice. On this appeal, in addition to other contentions, he challenges the admissibility of certain evidence which was taken from him at the time of his arrest. It is claimed by the state that the defendant entered the business premises where the prosecuting witness was employed as a secretary, held her up at knife point and compelled her to forge a dozen of her employer's checks, payable to the defendant. There was evidence that after leaving the premises he cashed one of the forged checks, embarked on a drinking bout and some three hours later returned to commit the alleged assaults. He escaped from the premises upon being interrupted by an owner of the business. Subsequently he was arrested in Anne Arundel County in response to a "look out" broadcast by Baltimore City police. At the time of his arrest, or in connection therewith, he was searched and there were found in his possession and offered in evidence at the trial, a pocket knife and a series of the forged checks. No warrant was issued for the defendant's arrest. He now contends that his apprehension was without probable cause, consequently his arrest was unlawful and that the evidence discovered on him should be suppressed.
The principles here involved are the same as those considered by the Court in the case of Edwardsen v. State, 231 Md. 332. In that case the conviction was reversed and a new trial ordered because the record below was so unsatisfactory that it was impossible to determine whether the appellant had been arrested for probable cause. We adhere to the principles enunciated for the Court in that case by Judge Prescott but conclude, on the facts established by this record, that there was probable cause for the apprehension of Farrow.
It is elementary that where there is a lawful arrest the arresting officer may lawfully conduct a search of the person apprehended and of his immediate surroundings.
"* * * Moreover, where circumstances make an arrest without a warrant lawful, it is permissible, as an incident to the arrest, to search the person of the suspect and to take into custody and examine the tangible evidence or instruments of the crime, whether upon his person or within his present or immediate possession." Mulcahy v. State, 221 Md. 413, 422.
Where weapons or incriminating articles are uncovered during this search, they may be offered in evidence if relevant to the trial. Such an arrest and search may be made by an officer where a misdemeanor is committed in his presence and it may also be made where there is reasonable ground to believe that a felony has been committed and there is a reasonable basis to believe that the person arrested participated therein. Such an arrest need not be predicated upon personal knowledge of the arresting officer. In the case of Shorey v. State, 227 Md. 385, 388, the Court disposed of this contention as follows:
"The appellant further contends that he was arrested without a warrant and that the articles of clothing taken from his room were improperly admitted in evidence. In arresting a person whom the police may reasonably suspect of committing a felony, they may do so on the basis of information received from a third person. See Mulcahy v. State, 221 Md. 413, 421-423, and cases cited. * * * As an incident of a lawful arrest, they may search his person and the immediate premises."
In Mapp v. Ohio, 367 U.S. 643, the Supreme Court held that the state courts were required by the United States Constitution to bar the use of evidence obtained in violation of Federal constitutional guarantees against unreasonable searches and seizures. Prior to this decision the Courts of Maryland had consistently held that evidence otherwise relevant and competent could be received in a criminal court whether or not some constitutional guarantee had been breached in its obtention. This principle was modified by the so-called "Bouse Act", Article 35, Section 5 of the Code, which excluded from the trial
of misdemeanors (with some exceptions) evidence which had been obtained in violation of enumerated constitutional safeguards. The effect of the Mapp decision, supra, is to make inadmissible evidence which was obtained on the occasion of a defendant's arrest in violation of his security against an unreasonable search or seizure. This becomes important in many cases because frequently a person charged with a felony may be arrested without a warrant. Nevertheless, if there was probable cause for his arrest in connection with a felony and his arrest is lawful, a search incident thereto is proper and evidence uncovered in connection therewith may be properly received in evidence. The difficulty is that not always in the trial of a case does it become apparent that there was probable cause for the arrest of the defendant. The test here, we think, is whether at the time Sergeant Rawlings broadcast his "look out" for the defendant by a description, including the license tag for his car, the police then had reasonable grounds to believe that the prosecuting witness in this case had been attacked and that there was reasonable ground to believe that the defendant was the culprit. The defendant was known to the prosecuting witness because he had previously worked for her firm and she had interviewed him in connection with payroll matters. While the record is unclear as to just what was said by her to the police when they first reached her, there would seem to be a fair inference that she told them about the assault and what she knew concerning the identity of her assailant. Certainly Mr. Dukes, who interrupted the assault, recognized the defendant and informed Sergeant Rawlings of his identity. On page 76 of the extract while Sergeant Rawlings was under cross-examination the following appears: "I take it you got the information that led you down to the defendant's home from Mr. ...