ORTH, J., delivered the opinion of the Court.
On October 10, 1966, appellants were convicted of the felonious transportation of untaxed cigarettes in violation of Maryland Code (1965 Replacement Volume), Art. 81, § 455, as amended, in the Circuit Court for Queen Anne's County, Judge
The only question presented on this appeal is whether there was an illegal search and seizure.
On May 21, 1965, a truck, which appeared to be loaded with lumber, driven by the appellant, Gaudio, and in which the appellant Bucci was a passenger, was stopped by a trooper of the Maryland State Police for a traffic violation of improper passing. As Gaudio was not a resident of Maryland he was informed by the trooper that he had to post bond in the amount of $28. Maryland Code, (1967 Replacement Volume), Art. 66 I/2, § 320-321. The truck was driven by Gaudio under escort of another trooper to Centreville so the bond could be posted. It was parked in front of the Centreville jail when the arresting trooper arrived on the scene. Bond had not as yet been posted. As the trooper walked by the truck toward the appellants, who had gotten out of the truck, he observed that although it appeared to be loaded with two by four pieces of lumber, the overload springs were not down. He looked more closely and saw that the lumber was fastened by a "flimsy bolt just around there for looks they looked like." He went to the back of the truck and discovered that the lumber was actually only the ends of two by fours nailed to a piece of plywood and "then there was no doubt in (his) mind there was a false load on the truck." At this point the testimony of the trooper, admitted without objection, was as follows:
It was stipulated that the cigarettes found on the truck, 3,098 cartons of ten packs each, were turned over to the Cigarette Tax Unit of the office of the Comptroller of Maryland and that none of the packs bore a tax stamp. The piece of plywood with the ends of the two by fours nailed to it and six photographs of the truck were admitted in evidence without objection. At the close of the State's case, a motion for a directed verdict of acquittal on the ground that the search and seizure and the arrest that followed were illegal was made and denied. This motion is treated as a motion for judgment of acquittal. Maryland Rule, 755 a. By thereafter offering evidence, the appellants withdrew this motion. Maryland Rule, 755 b.
Gaudio, testifying on his own behalf, said that when the trooper thought he saw something that was not right on the truck he took the keys and said, "Open the door. You have cigarettes in here." He did not deny that he admitted cigarettes were in the truck. He denied giving permission to search the truck and when the trooper asked him to open the back, said, "I am not going to open anything. I am not opening anything." Whereupon the trooper said, "If you don't open it I will open it," got a pair of pliers or some tool and opened the truck. The trooper then told him he was under arrest. He testified on cross examination that Bucci lived near him in New York but just went along for the ride because Bucci had no
In Porter v. State, supra, no objection was made to the introduction in evidence of articles that had been stolen until the end of the State's case at which time counsel for the appellee moved that evidence pertaining to the recovery of those articles be stricken, because there was no showing on the part of the
A waiver as to evidence illegally obtained operates with full effectiveness and results in the evidence admitted being given the same probative force as if it were competent. Martin v. State, 203 Md. 66 (1953). See Gault v. State, 231 Md. 78 (1963) in which it was held that where the record does not show any objection to the testimony, or any motion to strike, the matter of the admissibility of the testimony was not properly before the Court in appeal. The Court further said that a motion for a directed verdict at the close of the State's case could hardly be considered a motion to strike, and if so, it came too late. See also Banks v. State, 228 Md. 130 (1962). We find, therefore, that the appellants waived their right to object to the admission of the articles introduced in evidence, even assuming, arguendo, that they were seized as a result of an unreasonable search.
Like the cigarettes, the plywood section and the photographs of the truck, the admission was introduced in evidence without objection. The contention on appeal goes to the lack of the constitutionally
When a confession is admitted without objection, an objection cannot be made for the first time on appeal. Tucker v. State, 237 Md. 422 (1965). We do not think that the motion for "a directed verdict of acquittal" which, as we have pointed out, under Maryland Rule, 755 a, must be considered as a motion for judgment of acquittal, was timely and sufficient objection for the reasons set forth in the discussion in this opinion with regard to the admissibility of the tangible evidence.
In any event, we do not feel that the search was unreasonable. As the illegal transportation of untaxed cigarettes is a felony under the provisions of Art. 81, § 455 of the Maryland Code (1966 Supplement to the 1965 Replacement Volume), arrests may be made without a warrant, provided that the arresting officer had probable cause to believe that the crime has been committed and that the person arrested committed the offense. Where such arrest is made upon sufficient probable cause, the officer may, as an incident to the arrest, search the motor vehicle operated by the person arrested.
It also quoted 5 Am.Jur.2d "Arrest", Section 48, where it is stated:
In the instant case the trooper observed that the overload springs on the truck were not down. He saw the lumber was secured by a flimsy fastener. On closer inspection it was obvious that the truck was not loaded with lumber but in an attempt to make it appear that it was, the ends of two by fours were nailed to a piece of plywood, making a compartment in the truck in which something could be concealed and transported. The trooper said to the appellant Gaudio, "You have cigarettes in there," having in mind untaxed cigarettes, as he said on cross examination. Gaudio answered, "Yes, sir." These observations of the trooper and the admission by Gaudio gave the trooper reasonable grounds to believe that the felony of transporting untaxed cigarettes had been committed and that the appellants committed it. The observations and admission made an arrest of the appellants for that offense legal and a search of the vehicle valid. By the testimony of the trooper, he placed the appellants under arrest after the search of the truck. In Cannon v. State, 235 Md. 133 (1964), the Court of Appeals
See also Hyde v. Warden, 235 Md. 641 (1964). In this regard we see no distinction, in the instant case, between a search of the person and a search of the truck. Since we have found that the arresting officer had probable cause to believe that the appellants had committed a felony, the search, resulting in the seizure of the contraband, under the facts and circumstances then existing, was not too remote in time or place nor was it exploratory in nature. By his testimony, the trooper did not base the search specifically on probable cause to arrest without a warrant. In Cannon v. State, supra, the appellant contended that the search was for the purpose of identity and therefore was not predicated upon probable cause to believe a felony had been committed, but upon curiosity as to the name of the appellant. The Court said, page 136:
So we think it immaterial that the trooper searched because he felt, if he did, that he had permission to search, and we need not decide whether there was a valid consent to the search in view of our holding that the arrest was legal.
It is inherent in our holding, that the admission of the appellant, Gaudio, that there were cigarettes on the truck, was a necessary element to establish the probable cause for the arrest. The admission was introduced in evidence without objection
In the opinion the Court discussed "custodial interrogation" at great length and the dangers against which the specific procedural safeguards are a shield were more definitively set forth in the discussion explaining the meaning above stated. The four cases decided by Miranda shared salient features, among which was "incommunicado interrogation of individuals in a police-dominated atmosphere." The Court referred to the Wickersham Report in the early 1930's and to the "third degree" which flourished at that time and to cases thereafter decided by the Court in which police resorted to "physical brutality — beatings, hanging, whipping — and to sustained and protracted questioning incommunicado in order to extort confessions." It found that the use of physical brutality and violence is not relegated to the past or to any part of the country and stated that,
It cited examples of confessions obtained in three cases decided by the Court, observing that the defendants succumbed "in the incommunicado police-dominated atmosphere". In the four cases decided in Miranda the Court concerned itself primarily with this interrogation atmosphere and the evils it can bring, and said, page 461:
The Court summarized, page 478:
It appears, then, that the procedural safeguards must be employed when, (a) an individual is taken into custody or otherwise deprived of his freedom by the authorities, and, (b) he is subjected to questioning. In the instant case, we feel that the appellants were not subjected to questioning within the contemplation of Miranda. We do not think that the evils with which the Court was concerned in Miranda were present. The appellants were not held incommunicado in an isolated setting in the privacy of an interrogation room in a police station. They were not swept from familiar surroundings into police custody, surrounded by antagonistic forces and subjected to the techniques of persuasion. They were standing on a public street, in the afternoon, beside the truck in which they had been riding, in the presence of one police officer who had arrested one of them for a traffic violation a short time before. They knew that if they posted $28 bail they were free to proceed on their way. Nor were they "subjected" to interrogation. The testimony of the trooper was that he knew he said "You have cigarettes on that truck," to which Gaudio replied, "Yes, sir." The trooper then said, "How many?" to which Gaudio replied "2,000 cartons." The trooper asked, "Do you mind if I look inside?" and Gaudio consented by saying, "No, sir. Go ahead." We see no practice here, such as concerned the Court in Miranda, requiring assurance that it be eradicated. The compelling atmosphere inherent in the process of in-custody interrogation was not present. We think that the questions by the trooper as to the cigarettes and the answers by Gaudio did not
There was sufficient legal evidence to sustain the convictions. The credibility of witnesses is for the trier of facts to determine and the trial court was under no obligation to believe the appellants. Duffy v. State, 243 Md. 425 (1966). It found no difference in Bucci's and Gaudio's participation in the crime. In judging credibility, the trial court may disbelieve exculpatory statements made by a defendant. Bird v. State, 231 Md. 432 (1963). The findings of the trial court on the evidence were not clearly erroneous and the judgments are affirmed. Maryland Rule, 1086.
Judgments affirmed; appellants to pay costs.
"In any case where * * * any peace officer of the State, has knowledge or reason to suspect that any vehicle is carrying five or more cartons of cigarettes * * * such peace officer is authorized to stop such vehicle and to inspect the same for contraband cigarettes. If such vehicle is carrying cigarettes in violation of any provisions of this subtitle, the cigarettes and the vehicle shall be confiscated and delivered to the Comptroller." We deem "reason to suspect" to mean probable cause.