Opinion
No. 82, September Term, 1968.
Decided November 19, 1968.
ARREST — Legality Of Arrest Was Immaterial Where Accused Failed To Object To Admission Of Evidence Or To Move For Its Exclusion. Even if appellant's arrest had been illegal, objection to the admissibility of evidence obtained by police at the time of the arrest was waived by appellant's failure to object to its admission or to move for its exclusion, and it had the same probative force as if competent. Rules 522 (d)(2), 725 (f), 729. p. 424
SEARCH AND SEIZURE — Evidence Not Seized As Result Of Unreasonable Search Is Not Rendered Inadmissible By Illegal Arrest — Heroin Abandoned By Accused At Time Of Arrest. Where evidence is not seized as a result of an unreasonable search, it is not rendered inadmissible by an illegal arrest. p. 424
Evidence challenged by appellant at his trial for possession and control of a narcotic drug was not seized by a search in the constitutional sense, where the evidence, an envelope containing heroin, was abandoned by appellant, who threw the envelope into an open trash container on the sidewalk. p. 424
Decided November 19, 1968.
Appeal from the Criminal Court of Baltimore (SODARO, J.).
Donald Stuart Parker was convicted of possession and control of a narcotic drug, and, from the judgment entered thereon, he appeals.
Affirmed.
The cause was submitted to MURPHY, C.J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.
James W. McAllister for appellant.
Thomas N. Biddison, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State's Attorney for Baltimore City, and Thomas N. Biddison, Jr., Assistant State's Attorney for Baltimore City, on the brief, for appellee.
The appellant and a co-defendant, jointly indicted for possession and control of a narcotic drug, were jointly tried in the Criminal Court of Baltimore. The appellant was found guilty generally and given a sentence of 5 years.
Jerome Franklin Carrol, not a party on this appeal, was also found guilty generally and sentenced to 2 years.
The appellant's sole contention on appeal from the judgment is that his warrantless arrest was illegal as made without probable cause and therefore evidence received against him was improperly admitted. There is no merit to the contention. A police officer assigned to the Narcotic Unit testified that he saw the appellant and the co-defendant walking on the street. The appellant removed a brown manila envelope from his right coat pocket and dropped it in an open trash container on the sidewalk. The officer recovered the brown envelope. In the envelope were 70 small clear gelatin capsules containing a white powder. The appellant was arrested. Upon analysis by a United States Customs chemist the white powder was determined to be a narcotic drug, heroin hydrochloride. The legality of the arrest here is immaterial for two reasons. First, there was no objection made to the admission of the evidence now challenged. By the provisions of Md. Rule, 522d2, made applicable to criminal causes by Md. Rule, 725f, every objection to the admissibility of evidence shall be made at the time when such evidence is offered, or as soon thereafter as the objection to its admissibility shall have become apparent; otherwise the objection shall be treated as waived. Nor was there a motion to exclude or suppress the evidence as provided by Md. Rule, 729. So even if the arrest were illegal, objection to the evidence was waived by the failure to object to its admission or to move for its exclusion and it had the same probative force as if competent. Gaudio and Bucci v. State, 1 Md. App. 455. See Baker v. State, 3 Md. App. 251. Second, it is clear that the challenged evidence was not seized by a search in the constitutional sense; the appellant abandoned the envelope and its contents by throwing it in the trash container on the public street. Where evidence is not seized as a result of an unreasonable search, it is not rendered inadmissible by an illegal arrest. Fisher v. State, 1 Md. App. 505. See Henderson v. Warden, 237 Md. 519; Matthews v. State, 237 Md. 384; Davis v. State, 2 Md. App. 630; Boone v. State, 2 Md. App. 479.
Judgment affirmed.