Moore v. State

525 A.2d 653, 71 Md. App. 317, 1987 Md. App. LEXIS 321
CourtCourt of Special Appeals of Maryland
DecidedMay 13, 1987
Docket886, September Term, 1986
StatusPublished
Cited by7 cases

This text of 525 A.2d 653 (Moore v. State) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moore v. State, 525 A.2d 653, 71 Md. App. 317, 1987 Md. App. LEXIS 321 (Md. Ct. App. 1987).

Opinions

ROSALYN B. BELL, Judge.

Mitchell Mickey Moore was convicted by a jury in the Circuit Court for Montgomery County of attempted murder in the second degree, first degree rape, robbery with a deadly weapon, and statutory housebreaking. Moore was sentenced to 30 years incarceration without parole for at[320]*320tempted murder, and consecutive sentences of life and 30 years imprisonment for the remaining convictions. Moore presents two questions for our resolution:

“1. Did the court err in denying Appellant’s motion to suppress extrajudicial identifications and evidence obtained in violation of the Fourth Amendment?
“2. Did the court abuse its discretion in the denial of Appellant’s request, based on a discovery violation, to exclude fingerprint evidence?”

Briefly, a 23-year-old woman was violently attacked in her Silver Spring apartment in the early afternoon of September 28, 1984, when a man pushed his way into her home after showing her two photographs from his wallet and inquiring into the whereabouts of the photographs’ subjects. The victim subsequently identified Moore as her attacker and the photographs seized from his wallet as those shown by her attacker. More details will be supplied as necessary to explain the issues presented.

I. PROBABLE CAUSE

The events surrounding appellant’s arrest in the crime sub judice began on October 15, 1984 at approximately 12:15 p.m. in the District of Columbia. Metropolitan police officers Craig Munro and James Bovino were in their marked police wagon near the intersection of Cathedral Avenue and Bellevue Terrace in the northwest quadrant of the city. While Bovino was issuing a traffic citation, Munro heard a police radio dispatch about a woman screaming for help in the 4400 block of Edmunds Street. When Bovino returned to the wagon, Munro advised him of the broadcast and they proceeded to discuss the location of Edmunds Street. Both officers then observed appellant walking on the opposite side of the street. Appellant approached the officers and requested directions to 22nd and Q Streets. Munro exited the vehicle to give appellant directions. While they were conversing, a description of the Edmunds Street offender was broadcast in response to Bovino’s request. The dispatch, reported at 12:21 p.m., disclosed a robbery [321]*321committed between 11:30 a.m. and 12:00 noon in which the complainant was beaten and knocked unconscious, and money and jewelry were stolen.1 The suspect, as described by the complainant, was:

“[A] black male. In his 20’s. Five-foot eight. One hundred and eighty pounds. Wearing a dark leather jacket. The complainant believes it might have been black. She states he also wore she believes blue jeans.”2

Noting that appellant met this description in both physical characteristics and attire, and further noticing that appellant was perspiring profusely, Bovino concluded appellant was most probably the offender. Appellant was handcuffed and credit cards in the complainant’s name were seized and possibly his wallet.3 He was then immediately transported to the Edmunds Street address, a distance of approximately one mile, for a show-up identification by that complainant. Following her identification, appellant was held in custody at a Metropolitan police station. Montgomery County police investigating the Silver Spring attack were notified and items of evidence seized from appellant were made available. The Montgomery County officers photographed both appellant and the two photographs recovered from his wallet.

Later that evening, the Maryland victim identified those photographs in connection with the attack she sustained on [322]*322September 28. Subsequently, on October 23, she identified appellant in a physical line-up conducted by the District police.

Appellant moved to suppress the victim’s extrajudicial and in-court identifications and the photographs seized from his wallet.4 The hearing judge ruled that when appellant was handcuffed and placed in the rear of the wagon on the corner of Cathedral Avenue and Bellevue Terrace on October 15, 1984, he was under arrest and that the arrest had been effected with probable cause.5 Accordingly, the court denied the motion because the wallet was seized and the identifications were made incident to a lawful arrest.

Appellant asserts there was no probable cause to support the arrest at Cathedral Avenue and Bellevue Terrace and, therefore, the motion to suppress should have been granted. The first issue we consider is the application of the arrest jurisdiction’s law to the question of probable cause. Since the arrest occurred in the District of Columbia, under the ruling in Berigan v. State, 2 Md.App. 666, 668, 236 A.2d 743 (1968), we apply that jurisdiction’s “law” in testing the validity of the arrest. While the Berigan Court did not delineate what it meant when referring to the “law” of the arrest jurisdiction, the word “law” must refer to the particular statutes and constitutional provisions of that jurisdiction. Where those statutory and constitutional provisions are not in contravention of the United States Constitution, and to the extent that they expand an arrestee’s rights, clearly those provisions control any decision concerning the validity of an arrest. If the word “law” in Berigan meant case law interpreting federal constitutional law, under the principles of federalism, a sister state’s [323]*323constitutional interpretation would not necessarily be binding in this State. Where, however, that sister state’s interpretation is persuasive, as was the case in Berigan, a Maryland court may adopt that jurisdiction’s analysis.

The Charter of the District of Columbia has no Fourth Amendment provision and its courts apply federal constitutional law to a probable cause analysis. Thus, we are not bound by its decisions. Since, however, we find the District of Columbia cases cited herein in accordance with our own interpretation of probable cause to support an arrest and more factually applicable, we follow the cue in Berigan and consider District of Columbia decisions on the issue.6

The next critical issue is whether, under the facts and circumstances of this case, the detention of appellant on the street was an arrest requiring the existence of probable cause, or an investigative stop justifiable on only articulable suspicion. We hold that it was the former. Under District of Columbia law, a person is arrested when there is a restriction of the right of locomotion or restraint of the person. Price v. United States, 119 A.2d 718, 719 (D.C. 1956). We agree with the hearing judge that appellant was arrested at the scene of his initial encounter with police immediately prior to being handcuffed and transported to the crime scene.

Having concluded that appellant was arrested rather than detained for an investigative stop, we must now determine whether probable cause existed to support the arrest. Certainly, a police officer, alone or in concert with others, may make a warrantless arrest for a felony committed in his or her presence, or out of his or her presence, if the officer has probable cause to believe a felony has been committed and the person arrested committed it. Clemm v. United States, 260 A.2d 687, 688 (D.C.1970). In

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Bluebook (online)
525 A.2d 653, 71 Md. App. 317, 1987 Md. App. LEXIS 321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-state-mdctspecapp-1987.