Appeal from the Criminal Court of Baltimore; Prendergast, J.
Brune, C. J., and Henderson, Hammond, Marbury and Sybert, JJ. Hammond, J., delivered the opinion of the Court. Brune, C. J., dissents.
Appellant was convicted of burglary, larceny and house-breaking on the strength, in part, of evidence admitted over his objection that it had been seized as an incident of an illegal arrest.
There had been a number of burglaries in the area surrounding Twenty-fifth and St. Paul Streets in Baltimore. Two policemen working in plain clothes were assigned to cruise about the area in an unmarked car bearing regular tags in an effort to pick up the persons responsible. About midnight one evening, as they were going east on Twenty-sixth Street, they observed a truck with its headlights unlighted come towards and go on by them. They turned and followed the truck for several blocks. At Maryland Avenue and Twentieth Street the truck stopped and its two occupants got out and ran away. Appellant was pursued and arrested, after he had been warned he would be shot if he did not stop running. From his right rear pocket was taken an envelope bearing the name of the Royal McBee Corporation. Appellant was then taken back to the truck where a look revealed eighteen typewriters therein, fifteen being in cartons which bore the name of the Royal McBee Company, 428 E. 25th Street. The typewriter company had been broken into and robbed of a number of typewriters earlier that night but these facts did not become known to the police for an hour or more after the arrest and the searches and seizures.
The one police officer who testified (he had been the superior officer on the assignment) said frankly that at the time he followed the truck and arrested appellant he had no knowledge that a burglary had been committed that night. He said: "we were plagued with burglaries in the area and my assignment was strictly to apprehend burglars in that area." When he saw the truck coming from a business neighborhood with its lights out, he felt "perhaps it was involved in something, in some burglary * * *. I was pursuing the truck to investigate it in regards to burglary not any particular burglary but
it is a mere suspicion." Asked if he had a reason to suspect that a crime had been committed, he answered "only my own thoughts." He did not give consideration at the time to the violation of law of operating without headlights (although his testimony disclosed he was familiar with the provisions of Code (1957), Art. 66 1/2, Secs. 271 and 272) and said in his experience as a policemen he had never arrested a person for that offense. He had made investigations of lack of lights but there had been reasonable explanations such as the failure having just happened or an inadvertent neglect to turn them on.
Judge Prendergast ruled that in view of the facts that (a) the police knew of recent burglaries in the neighborhood and were looking for evidence to help bring the perpetrators to justice, (b) the truck was not of the type to be expected in the area (not bearing the name of any firm or company) and took "evasive action" without lights when followed, and (c) the occupants of the truck ran away, the police had reason to believe appellant was guilty of one or more of the various felonies they were aware of and were investigating and were justified in making the arrest and the seizures which followed.
The basis for a legal arrest without a warrant for a felony was spelled out in Mulcahy v. State, 221 Md. 413, and restated in Edwardsen v. State, 231 Md. 332; the arresting officer, acting as would a reasonably cautious man, must have had grounds (including facts and circumstances within his knowledge or of which he has reasonably reliable information) to believe (a) that a felony had been committed and (b) that the person arrested had committed the felony. We think, although the matter is not entirely free from doubt, that the arresting police in the case before us had no more than, as they said, strong suspicion that the appellant had committed any of the felonies they were investigating. Reasonable belief can be based on less than would justify conviction but there must be present more than suspicion, even strong suspicion. Price v. State, 227 Md. 28, 33.
It is true flight may be evidence of guilt, although of itself it is not conclusive. The flight in this case would not seem to have had sufficient reasonable relation to any felony of which the officers were aware. As we see them, the facts and
circumstances here would not have warranted a reasonably prudent man in believing that the appellant had committed a felony. Edwardsen v. State, supra; Henry v. United States, 361 U.S. 98.
Although a reasonable belief that appellant had committed a felony may not be availed of, it is our view that there may be reliance on the companion rule that a peace officer may make an arrest without a warrant for a misdemeanor which has been or is being committed in his presence, if he has reasonable grounds for belief that the person he arrests committed it. Price v. State, supra, and cases cited therein at p. 35 of 227 Md. The testimony established that the truck was being operated at night without lights in front in violation of Code (1957), Art. 66 1/2, Secs. 271-272, which require every vehicle on a highway (not parked in conformity with statutory requirements) to display lighted head lamps when there is not sufficient daylight to render persons, animals or substantial objects clearly discernible at a distance of three hundred feet. Violation of these sections is made a misdemeanor punishable by a fine of up to $100.00 by Sec. 287 (d) of Art. 66 1/2. There would seem to be no room for substantial doubt that the police had every reasonable cause to believe that either or both of the occupants of the truck they pursued were guilty of the misdemeanor of violating Secs. 271-272 of Art. 66 1/2 of the Code (1957), either as the driver ...