text:
    KENNETH EDWARD EHRLICH, JR. v. STATE OF MARYLAND
    [No. 1086,
    September Term, 1978.]

      Decided July 9, 1979.

      The cause was argued before Moylan, Wilner and Couch, JJ.

      Joel Marc Abramson, with whom were Talkin & Abramson on the brief, for appellant.

      William H. Kenety, V, Assistant Attorney General, with whom were Stephen H Sachs, Attorney General, William Hymes, State’s Attorney for Howard County, and A Gallatin Warfield, III, Assistant State’s Attorney for Howard County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

The conviction of the appellant, Kenneth Edward Ehrlich, Jr., by a Howard County jury, presided over by Judge Guy J. Cicone of 1) possession of cocaine, 2) possession of marijuana and 3) possession of marijuana with intent to distribute raises four related search and seizure questions — one going to the merits of the Fourth Amendment and three going to procedural questions for the handling of those merits.

The ultimate issue of guilt or innocence is beyond dispute. The police seized from the appellant’s person and from the trunk of the appellant’s automobile, at a time when it was occupied by him, 1) cocaine and 2) marijuana in sufficient quantity reasonably to indicate an intent to distribute it. The entire case hinges upon the constitutionality of that second seizure and upon the procedures employed to litigate that constitutionality.

1. The Fourth Amendment Merits

At the conclusion of the pretrial suppression hearing, Judge Cicone ruled that the warrantless search of the appellant’s automobile and the seizure of the contraband therefrom was constitutional under the Carroll Doctrine exception to the warrant requirement. Two conditions must, of course, coalesce to engage the gears of the Carroll Doctrine: 1) probable cause to believe that the automobile (or equivalent) contains evidence of crime and 2) exigency, to wit, a danger that the automobile and its evidentiary contents may disappear if the police do not seize the investigative current as it serves. Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925); Chambers v. Maroney, 399 U. S. 42, 90 S. Ct. 1975, 26 L.Ed.2d 419 (1970); Coolidge v. New Hampshire (Part IIB), 403 U. S. 443, 91 S. Ct. 2022, 29 L.Ed.2d 564 (1971); King and Mobley v. State, 270 Md. 76, 310 A. 2d 803 (1973); Soles v. State, 16 Md. App. 656, 299 A. 2d 502 (1973). Before focusing in upon the satisfaction of those two conditions, one immaterial issue, raised by the appellant, can be quickly cleared away. The appellant takes pains to point out that he was in the police cruiser when the warrantless search of his automobile took place and that the locus of the search was beyond his “reach, lunge or grasp,” citing Chimel v. California, 395 U. S. 752, 89 S. Ct. 2034, 23 L.Ed.2d 685 (1969), and Howell v. State, 271 Md. 378, 318 A. 2d 189 (1974). That fact, of course, is utterly immaterial. Judge Cicone explicitly, and quite properly, ruled that the warrantless search here was constitutional not under the search-ineident-to-lawful-arrest exception to the warrant requirement but under the very distinct Carroll Doctrine exception. Such factors as 1) lawful arrest and 2) the reach-lunge-or-grasp perimeter have no bearing at all upon the Carroll Doctrine. Having put aside the immaterial, we turn to the exigency requirement of the material.

A. Exigency:

The circumstances here were the very paradigm of exigency. The appellant first came to the attention of the arresting officer when his car lurched onto the parking lot of the California Inn in Laurel at approximately 11:30 p.m. on Sunday evening, July 3, 1977. Moments later, the appellant was arrested for driving while under the influence. It was only as the person of the appellant was searched as an incident of his arrest and as several other officers arrived with pertinent information, that probable cause to believe that the automobile contained drugs developed over the course of the next five to ten minutes. The critical accumulation of probable cause preceded the automobile search only by minutes.

At the moment when the critical mass of probable cause was reached, the car was on the parking lot of a tavern at approximately 11:40 at night. It was sitting not in a parking space but in a traveled lane. Its motor was running. There arrived upon the scene, moreover, just as the search was commencing, relatives of the appellant who demanded that the car be turned over to them. In terms of a threat to the probable evidence, circumstances could hardly have been more exigent. Chambers v. Maroney, supra; Soles v. State, supra. Exigency having clearly been established, we turn to the proof of probable cause.

B. Probable Cause:

We hold that there was probable cause to believe that the appellant’s automobile contained narcotics. No single police observation yields this result. The steady amassing of data, however, initially fragmentary and inconclusive, first yields to the inquiring mind a working hypothesis. As additional data are checked against that hypothesis, a theory emerges offering the probable explanation for the pattern of events. A probability is all that is required. Dawson v. State, 11 Md. App. 694, 707-712, 276 A. 2d 680 (1971); State v. Swales, 12 Md. App. 69, 277 A. 2d 449 (1971).

The first significant observation, by Officer Kessler who made the arrest, was that the appellant was intoxicated. Officer Kessler first heard the loud squealing of tires and saW the appellant screech his car to a halt after bouncing over a curb. The appellant was very slow in his responses to the officer and then had trouble finding his license. As he alighted from the car, his balance appeared to be bad. The pupils of his eyes were dilated. Even though it was dark, when Officer Kessler suddenly shined his three-cell flashlight directly into the appellant’s eyes at point-blank range, the appellant’s pupils did not constrict. At that point, intoxication was probable. The cause of intoxication, however, could have been either alcohol or drugs. Indeed, the appellant concedes the legitimacy of his warrantless arrest for driving while under the influence of either alcohol or drugs. Subsequent observations will not be viewed in a vacuum but within this context of “A or B” — “alcohol or drugs” — as we look for clues to eliminate one alternative and to indicate the probability of the other.

As we begin the process of weighing the probabilities between the two alternatives, we have Officer Kessler’s initial observation that he smelled no odor of alcohol as the appellant first got out of his car. Later, as they faced each other a few feet apart, Officer .Kessler detected a slight odor of alcohol. Standing with Officer Kessler was Officer Fitzgerald who offered the belief within the police department that the appellant was involved in narcotics. Although not of great weight, Spinelli v. United States, 393 U. S. 410, 89 S. Ct. 584, 21 L.Ed.2d 637 (1969), this does nudge slightly toward the narcotics theory of intoxication, as between the two realistic alternatives. See United States v. Harris, 403 U. S. 573, 91 S. Ct. 2075, 29 L.Ed.2d 723 (1971); State v. Edwards, 266 Md. 515, 522, 295 A. 2d 465 (1972).

The decisive tie-breaking between competing theories came with the search of the appellant incident to his arrest for the driving infraction. The concession of the appellant, in appellate brief, is helpful in this regard: “The search of the Defendant’s person is not questioned in this Appeal.” Recovered from the appellant’s pocket was a white powder wrapped in plain paper. Officer Kessler, with extensive experience and expertise in narcotics investigations, believed that it was cocaine. He found significant, as do we, that there were no commercial markings on the wrapping paper.

Officer Kessler found seven dollars in the appellant’s front pocket, a fact of no significance except that it was not co-mingled with the money found in a rear pocket. From the rear pocket was recovered $1550, carefully packaged. There were eight $100 bills, one $50 bill and thirty-five $20 bills, wrapped in groups of five each ($100 each). Although the appellant was reputed to be in the restaurant business, the denominations argue against their being the daily receipts. Nor would a responsible businessman carry such sums, so bundled, around on parking lots late on a Sunday night. Such bundling does indicate a purpose, however, and the strong possibility of a drug deal begins to emerge as a plausible purpose.

At that point, Officer Thomas arrived upon the scene. He had stopped the appellant for apparent “drag racing” only minutes before, had allowed the appellant to drive to get his missing driver’s license with Officer Thomas in convoy, and had momentarily lost the appellant when the appellant swerved suddenly onto the parking lot of the California Inn. What Officer Thomas hypothesized as a drag race, however, takes on a different coloration in light of the information then available to Officer Kessler. Putting aside Officer Thomas’s interpretation and going directly to Officer Thomas’s observations, which he communicated to Officer Kessler, two cars — the appellant’s and another — were observed poised side by side. When Officer Thomas suddenly came upon the scene, the two cars suddenly took off at a fast rate of speed. What Officer Thomas thought was a drag race was susceptible of a different explanation by Officer Kessler based upon his additional knowledge:

“A. Officer Thomas told me that there were two cars together, and that when he had appeared, they both took off as if they were drag racing. When I found the amount of money on Mr. Ehrlich that I did, and received the information as to his being involved in the narcotics traffic, I felt that he was probably, or that there was probably a deal going down, and Officer Thomas had interrupted it.
Q. Oh, you mean when someone is drag racing—
A. No, sir, that’s not what I mean.
Q. What evidence did you have that there was a deal going on?
A. I just explained that to you. Officer Thomas had seen two cars together, and when Officer Thomas appeared, the two cars had taken off. He, he had thought they were drag racing. Later, when I had stopped Mr. Ehrlich and recovered this amount of money on him, and Officer Thomas saw — I’m sorry, Officer Fitzgerald had informed me that, that he was possibly involved in dealing in narcotics, that fact plus the money, plus the fact that the two cars had been together, and had run when Officer Thomas appeared, led me to believe that that was a possibility.”

We feel here as we did in Dawson v. State, supra, at 11 Md. App. 694, 707:

“[Pjrobable cause emerges not from any single constituent activity but, rather, from the overall pattern of activities. Each fragment of conduct may communicate nothing of significance, but the broad mosaic portrays a great deal. The whole may, indeed, be greater than the sum of its parts.”

The various strands, possibly insubstantial unto themselves, together weave a strong web of probability. Both conditions were met for a warrantless Carroll Doctrine search of the appellant’s automobile.

2. The Immateriality of Probable Cause to the Jury’s Function

The appellant alludes to Article XV, § 5, of the Maryland Constitution, providing that “[i]n the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact,” and uses that as his launching pad to contend that Judge Cicone was in error in precluding him from arguing the probable cause question to the jury in this case. While ingenious, the argument could not be more wrong.

This curious provision of the Maryland Constitution with respect to the jury’s being judges of the law has only meant that where there are conflicting interpretations of law, the jury may have both interpretations argued to it and the jury may choose between, and further that the jury shall decide whether the law should be applied in dubious factual situations. We addressed this limitation upon the constitutional provision clearly in Hamilton and Fletcher v. State, 12 Md. App. 91, 98, 277 A. 2d 460 (1971):

“Article XV, Section 5, of the Constitution of Maryland provides that ‘In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact....’ That provision contemplates that it is within the proper province of the jury to resolve conflicting interpretations of the law and to decide whether the law should be applied in dubious factual situations. Schanker v. State, 208 Md. 15. It does not confer upon them, however, untrammeled discretion to enact new law or to repeal or ignore clearly existing law as whim, fancy, compassion or malevolence should dictate, even within the limited confines of a single criminal case. That limitation upon the role of the jury as ‘judges of the law’ is implicit in the holdings that questions of constitutionality may not be argued to a jury, Franklin v. State, 12 Md. 236, Bell v. State, 57 Md. 108, Hitchcock v. State, 213 Md. 273, and that questions of the admissibility of testimony and the competency of witnesses will rest within the sole province of the trial judge. Jules v. State, 85 Md. 305, Deibert v. State, 150 Md. 687, Kirschgessner v. State, 174 Md. 195.”

In deciding which of two conflicting interpretations of law is correct and in deciding whether the law should apply in a dubious factual situation, the jury is still carrying out its sole mission of determining guilt or innocence. Overriding limitations still abide as to what a jury shall not hear (by way of evidence or argument) and what a jury shall not do. Evidence will never be permitted to go to the jury on an immaterial issue. Argument and instructions will never be offered to the jury on an immaterial issue. The jury will never be asked to consider and to decide an immaterial issue.

In a criminal case, the only issue for the jury is that of guilt or innocence. Anything that does not bear upon guilt or innocence is utterly foreign to the only task assigned to the jury. Against this understanding of the limited function of the jury in a criminal trial, we turn to a consideration of the exclusionary rule of evidence. The exclusionary rule has no bearing upon guilt or innocence. It serves what Dean Wigmore referred to as the “extrinsic purpose” of policing the police. It does not enhance the integrity of the fact-finding process. (Indeed, it frequently derogates from that process by depriving the jury of probative evidence.) The Supreme Court has told us, since the inception of the rule, that its purpose is that of general deterrence. Linkletter v. Walker, 381 U. S. 618, 637, 85 S. Ct. 1731, 14 L.Ed.2d 601 (1965); United States v. Calandra, 414 U. S. 338, 348, 94 S. Ct. 613, 38 L.Ed.2d 561 (1974). As the Supreme Court pointed out in Stone v. Powell, 428 U. S. 465, 486, 96 S. Ct. 3037, 49 L.Ed.2d 1067, 1083 (1976):

“The primary justification for the exclusionary rule then is the deterrence of police conduct that violates Fourth Amendment rights. Post-Mapp decisions have established that the rule is not a personal constitutional right.”

The role of excluding probative evidence in order to serve the extrinsic, prophylactic purpose of making the police behave is a role exclusively for the court. It has nothing whatsoever to do with the jury function. The jury is assigned the sole mission of determining “Whodunnit?” Evidence that is competent, material and relevant and which helps the jury determine the answer to that ultimate riddle comes in. Evidence which is incompetent, immaterial and irrelevant and does not assist in answering the riddle stays out. Physical evidence — guns, bloodstains, fingerprints, contraband — is just as helpful to the jury in determining “Whodunnit?” whether the police have scrupulously obeyed the Bill of Rights or have shamelessly trampled it underfoot. The latter concern is a very real one to society at large and to the courts in administering the exclusionary rule, but it is simply not the concern of a criminal jury.

In the case at bar, all that matters to the jury is that marijuana was found in the trunk of the appellant’s automobile. The existence of probable cause, which the appellant wished to argue to the jury, is immaterial to the only issue before the jury: “Did the appellant possess contraband marijuana?” Whether the police entered the trunk of the automobile with probable cause or upon the most cavalier of fishing expeditions is immaterial to the issue of criminal possession. See generally Price v. State, 7 Md. App. 131, 254 A. 2d 219 (1969); Cleveland v. State, 8 Md. App. 204, 259 A. 2d 73 (1969); Johnson v. State, 30 Md. App. 280, 352 A. 2d 349 (1976).

The jury has all that it can handle in determining guilt or innocence. It is not the function of the jury “to police the police” by denying itself probative evidence.

3. The Propriety of Letting the Judge Know What He is Being Asked to Suppress

The appellant urges further that a trial judge should never be informed of what it is that a questioned search produced and that he is being asked to suppress. The reasoning is that the judge, aware of the contraband that was possessed, will be prejudiced against the defendant and that this will effect the ruling on suppression. Our reasons for rejecting this contention are manifold.

It is well settled that a legally trained judge, unlike a lay jury, is capable of compartmentalizing his thinking and of preventing knowledge which might inflame a jury from influencing his own decisions. State v. Hutchinson, 260 Md. 227, 271 A. 2d 641 (1970).

In the second place, a judge in many instances could not conduct an intelligent suppression hearing without knowing precisely what was seized. The issue in a search warrant case may be that the police seized things not particularly described in the warrant. The issue in the case of a warrantless search may be that the seizure went beyond the scope of the purpose of the warrantless search. In all cases, an appropriate suppression order must be framed, specifying what it was that was suppressed.

In the third place, the judge in a case such as this, reviewing the constitutionality of a warrantless search, is not himself determining probable cause. He is rather determining whether the policemen had probable cause at the moment the policemen initiated the warrantless search. The object recovered by the search was not available to the policemen before the search began and, therefore, would not enter into the probable cause equation.

In the fourth place, all of the testimony upon the' issue of probable cause that was before the judge is before us and is susceptible to our independent, reflective constitutional review.

4. The Discretion to Grant or Refuse a De Novo Hearing on the Motion to Suppress

The appellant claims that Judge Cicone abused his discretion in not granting a de novo hearing on the motion to suppress. He claims that he was entitled to such a hearing for two separate reasons: 1) that Officer Kessler changed his testimony between the suppression hearing and an earlier preliminary hearing and 2) that a proffered defense expert would testify that there is no distinct odor to unburned marijuana. Neither of these subcontentions raises the remotest possibility that Judge Cicone abused his discretion.

A. The Alleged Change in Testimony:

In the first place, the appellant has not furnished us with a transcript of the preliminary hearing, as would be his responsibility to pursue this point. We have, therefore, no way of knowing what the testimony of Officer Kessler was at the preliminary hearing.

Even taking that testimony as the appellant alleges it to be, however, we see no error for two reasons. In the first place, the alleged testimony at the preliminary hearing did not contradict the later testimony at the suppression hearing. It was simply the case that the earlier testimony was not as full as the later testimony under more probing direct and cross-examination. It is, furthermore, quite evident that the fuller testimony produced at the suppression hearing would have been immaterial at the preliminary hearing. The fuller suppression hearing testimony, omitted at the preliminary hearing, dealt with the subject of probable cause. It is not the function of a preliminary hearing to rule upon issues of constitutional exclusion. Md. District Rule 727g. It was, therefore, appropriate that such immaterial testimony be omitted at a hearing where it would serve no purpose. It is the purpose of a preliminary hearing to take the state’s case at face value and to determine therefrom whether a prima facie case exists to justify detaining a defendant while a grand jury or the state's attorney considers further action. At the preliminary hearing, the constitutionality of a search is immaterial; at a suppression hearing, it is the only thing that is material; at a trial upon the merits, it is again immaterial as far as the fact finder is concerned. In the second place, the alleged contradiction (even if there had been one) was fully before the court and subject to cross-examination at the time of the suppression hearing. This distinguishes it from a case like Waugh v. State, 275 Md. 22, 338 A. 2d 268 (1975), where the contradiction did not become apparent until after the suppression hearing had been concluded.

B. The Alleged Expert on the Non-Distinctive Odor of Unburned Marijuana:

Officer Kessler had testified that based upon probable cause and exigency, he began to search the appellant’s automobile for suspected narcotics. He began the search in the passenger portion of the automobile. He testified that while there, he detected the strong odor of unburned marijuana. The odor was most prominent at the very rear of the passenger section of the automobile. Upon his subsequent search of the trunk, he found the marijuana which had been the source of the odor. The appellant, in asking for a de novo suppression hearing, claimed to have an expert who would testify that unburned marijuana has a plant-like odor but one which is not distinguishable from any other freshly cut vegetable substance. Upon the basis of this, the appellant now claims that Judge Cicone abused his discretion in not conducting a de novo hearing. We cannot agree, for two separate reasons.

In the first place, even if the proffered expert testimony had been material, the appellant offered no reason why such expert could not have been called at the suppression hearing. For this reason alone, we would see no abuse of discretion in denying the de novo hearing.

In the second place, the entire issue as to which the expert would have testified is immaterial. The probable cause to search the entire automobile existed before the search began and before the odor of marijuana was detected. The search of the trunk would have been appropriate whether Officer Kessler smelled marijuana or not as he searched the passenger section of the car. The probable cause to search applied to the automobile as a whole. The sequence of searching could have been from the trunk forward to the glove compartment just as well as from the glove compartment rearward to the trunk, as in this case. When probable cause exists to search the automobile, there does not have to be incremental probable cause (probable cause plus) to proceed from one portion of the automobile to the next. In view of the constitutionally sufficient probable cause at the outset, the subsequent smelling of marijuana (real, imagined, perjured, mistaken, misinterpreted, whatever) was utterly immaterial surplusage.

Judgments affirmed; costs to be paid by appellant.

      . Curiously, this search incident to lawful arrest, which the appellant does not challenge, produced all of the cocaine in this case. The appeal, therefore, does not speak to the conviction for possession of cocaine. In view of the concurrent sentences (which were, in turn, suspended), the whole point of this appeal becomes very questionable.


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    SHELL OIL COMPANY v. HARVEY RYCKMAN
    [No. 1138,
    September Term, 1978.]

      Decided July 9, 1979.

      The cause was argued before Morton, Moore and Lo.we, JJ.

      Neil J. Dilloff, with whom were Gerard P. Uehlinger and Piper & Marbury on the brief, for appellant.

      Robert K. Nead, with whom were O’Doherty, Gallagher & Nead on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Harvey A. Ryckman leased a service station from Shell Oil Company in 1969. Despite the legislative declaration since 1964 that indemnity clauses in such leases might be void as against public policy, Md. Ann. Code art. 53, § 40 the lease contained the following provision:

“Lessee shall indemnify Shell against all claims, suits, loss, cost and liability on account of injury or death of persons or damage to property, or for liens on the Premises, caused by or happening in connection with the Premises (including the adjacent sidewalks and driveways) or the condition, maintenance, possession or use thereof or the operations thereon.”

On June 30,1970, Ryckman’s infant son, Terry, was injured by a piece of glass falling from a roll-type overhead door in the service station building. Ryckman, on behalf of his son and himself, sued Shell.

In addition to denying liability by plea, Shell counterclaimed against Ryckman alleging in its two count counterattack that in tort Ryckman’s negligence was the sole cause of the accident, and contractually (pursuant to the indemnity clause) that it was indemnified by Ryckman who, under the lease, “had the sole responsibility for maintaining” the service station premises. The issues before us relate solely to summary judgments granted Ryckman, and denied Shell on its counterclaim.

The Negligence Count

—parental immunity—

Judge James W. Murphy granted Ryckman summary judgment on the negligence count of the counterclaim. He reasoned that the tort claim was founded upon the negligence of the father and that Shell (which to recover must stand in the shoes of the son) was, as a matter of law, precluded from suing the father because of the doctrine of parental immunity.

That doctrine holds that ordinarily recovery for damages for negligence is not allowed between parent and child because of the relation in which the parties have stood to each other. Schneider v. Schneider, 160 Md. 18, 21-24 (1930); Latz v. Latz a/k/a Schafer, 10 Md. App. 720 (1971). Immunity does not apply however, where the reciprocal dependence and entitlement of that relationship expires upon the child’s reaching maturity and emancipating himself from parental control, Waltzinger v. Birsner, 212 Md. 107, 125-126 (1957); nor does it apply where the parental relationship is abandoned by cruel and inhuman treatment of the child or for malicious and wanton wrongs against him. Mahnke v. Moore, 197 Md. 61 (1951).

—the business exception—

It is upon the Mahnke exception that appellant, Shell, would have us reverse the summary judgment on the negligence count of the counterclaim. Shell argues that an exception for business activities would constitute a logical extension of the Mahnke reasoning.

Mahnke presented an extreme set of facts; the Court reasoned that the actions of a minor child’s father in killing the child’s mother in front of her, keeping her with the dead body for several days and thereafter shooting himself in her presence, represented a complete abandonment of the parental relationship and, therefore, abrogated the rationale for applying parent-child immunity. Appellant argues that the same principle of abandonment of the parental relationship operates here. Contending that the father employed the child, Shell argues that the primary relationship while at work is that of employer-employee rather than parent-child.

We decline appellant’s invitation to extend the exception for two reasons. First, appellant included no evidence in the record extract to establish the employee-employer relationship to which it avers. We choose not to address the contention without evidentiary support being supplied to us pursuant to Md. Rule 1028. We note that at oral argument appellant conceded that the son was not a regular employee at the station, but argued that he did “help his father." It appears unlikely that a viable argument for a business activity exception could have been built from the facts of this case, even if such an exception were available. Thus, even if we recognized the merit of such an exception, we would not apply it in this case.

Beyond that, however, we recently indicated in Montz v. Mendaloff, 40 Md. App. 220, 224-225 (1978), that Mahnke does not represent an expandable exception to the parent-child immunity doctrine, but instead should be narrowly construed. Montz reaffirmed the sentiment of Latz v. Latz a/k/a Schafer, 10 Md. App. at 733-734:

“ '[W]e believe it particularly fitting that any change in the parent-child immunity rule should be by legislative action .... The legislature in Maryland has been aware of the immunity under the Schneider decision for 40 years and has taken no action to change it.’ ” Montz v. Mendaloff, 40 Md. App. at 223.

We affirm the summary judgment granted by Judge Murphy against Shell on the negligence count.

The Contract Count

—the indemnity clause—

Judge Murphy denied Ryckman’s summary judgment motion as to the contract count. Subsequently Shell sought one thereon in its favor, but Judge Sodaro denied the motion. Ryckman then filed another motion for summary judgment on the contract count, arguing this time that the indemnity clause in the lease was statutorily invalid. Presumably appellee had belatedly discovered Md. Ann. Code art. 53, § 40. See note 1 supra. Judge Sklar (who heard the motion immediately preceding the trial to be had on Terry’s initial suit) granted summary judgment, so we are told and have verified by the docket entry. Without benefit of either the order or his opinion to guide us (see Md. Rule 1028), we assume from the motion that it was granted because of the § 40 statutory prohibition against indemnity clauses in leases. That is the argument addressed in this appeal in any event. If that was Judge Sklar’s reason for granting summary judgment, we will hold that his conclusion was proper but his reason was wrong.

This is one of the difficulties with addressing issues without the benefit of either order or opinion upon which the issues are founded. We have both to raise and exorcise all spectral possibilities, some argued and others not. The time must come when we enforce more rigidly our technical rules of procedure such as Rule 1028. But see Sergeant Company v. Pickett. 285 Md. 186 (1979).

—exclusivity—

Shell contends, and we agree, that if Judge Sklar granted summary judgment because the indemnity clause was statutorily void, he was wrong. The statute proscribing exculpatory clauses by its language does not apply to any lease wherein the lessee or tenant has “exclusive control” of the premises.

Ryckman contends that he does not have exclusive control because paragraph 5 of the lease prohibits him from making

“any attachments or additions to, or any structural alterations of, any building on the Premises, or construct any additional buildings or structures on the Premises, without Shell’s prior written consent.”,

and although paragraph 7 charges him with promptly repairing or replacing damage to the premises, it further provides that

“if Lessee fails so to do, Shell may make such repairs or replacements and charge to Lessee the actual cost thereof or, in lieu of making such repairs or replacements, may charge to Lessee a sum equal to the reasonable cost of such repairs or the reasonable value of such replacements.”

Additionally under paragraph 7, Ryckman contends that Shell retained

“the right to enter the Premises at any time for the purpose of inspecting the same and making repairs, replacements and additions.”

From these provisions, Ryckman would have us believe he was denied “exclusive control” of the premises and, therefore, the statutory prohibition against such exculpatory clauses applies. These provisions are standard in any lease to preserve from despoliation the landlord’s property. If we view them excised from context and emphasized to indicate a desired result, we violate the directive that the terms of a contract must be viewed as a whole rather than separately. Rigger v. Baltimore County, 269 Md. 306, 312 (1973).

The lease executed between the parties vested control of the service station premises in appellee. Paragraph 1 of the lease demised to appellee all of the land, buildings, improvements and equipment comprising the service station. Paragraph 11 of the lease provides that “the entire control and direction of... [the] business and operations shall be and remain in Lessee____” Although not discussing art. 53, § 40, in Macke Co. v. Housing Management Co., 38 Md. App. 425, 429 (1978), while noting that we have no articulated standard in Maryland by which to determine whether a landlord has reserved control over property in common, we held that:

“Whether a landlord has retained control over the premises is essentially a matter of intention to be determined in the light of all the significant circumstances, particularly the leases and practices of the parties.” (footnotes omitted).

There is no indication in the extract that evidence of practices exist shading or equivocating the clear language of the lease. Absent such evidence or language that is ambiguous, the lease construction is a matter of law for the court. Gov’t Employees Insur. v. DeJames, 256 Md. 717, 720 (1970); Keyworth v. Industrial Sales, 241 Md. 453, 456 (1966). We see no ambiguity on this point. The provisions in paragraphs 5 and 7 relied upon by Ryckman are standard protective measures against waste, not indicative of an intent to subvert the lessee’s exclusivity of control of the premises. Cf. Riggers, supra at 312. If that is not so, there is no purpose in the exclusivity exception in the statute. No lease would ever be construed as exclusive.

—waiver of immunity—

Shell has prevailed in sustaining the viability of its indemnity clause; now it must convince us that by agreeing to indemnify Shell for “all claims,” Ryckman waived his immunity from suit as a parent. Since Shell volunteered settlement with Terry, to permit it to recover from the father vicariously enriches the son at his father’s expense, a result the parental immunity doctrine sought to avoid.

We touched upon the question of what is sufficient to indicate a contractual waiver of that immunity in Montz v. Mendaloff, 40 Md. App. 220. In light of Schneider v. Schneider, 160 Md. 18, we declined to hold that a parent who contracts to insure against her negligence negated the immunity rule by so doing. Montz, supra at 224.

Our concurring Chief Judge bemoaned the failure of the court to reevaluate the parent-child immunity doctrine in light of Maryland’s compulsory automobile insurance law. He “believe[d] it to be inconceivable that the average parent entering into a contract with a motor vehicle liability insurance carrier knows that he is excluding from the protection of the policy his minor children, the ones he ordinarily is most desirous of protecting.” Id. at 228-229. Nonetheless, the panel found there had not been a waiver of immunity and the Chief Judge was forced reluctantly to concur that such was the state of the law.

This case carries us one step farther than Montz. If we cannot infer that when one contracts to protect all the world from his negligence, he did intend to protect his own children, Montz,"supra, then can we properly infer that a parent who broadly contracts to indemnify a landlord “against all claims ... on account of injury ...” contemplated waiving his immunity so he could indemnify a landlord who might settle a claim with his son? As Ryckman asked us to read too broadly the specific repair clauses of the lease, so we think Shell asks us to read too much specificity into a general indemnity clause.

It is presumed that parties contract with a knowledge of the existing law — in this case the law of parental immunity — and such law becomes a part of the contract unless expressly rejected as inapplicable. See Montz, supra at 228-229; Denice v. Spotswood I. Quinby, Inc., 248 Md. 428, 433-434 (1968); Crockett v. Crothers, 264 Md. 222, 227 (1972); Winterstein v. Wilcom, 16 Md. App. 130 (1972).

“ ‘Generally, unless a contract provides otherwise, the law applicable thereto at the time and place of its making, including constitutional and statutory provisions and judicial precedents, is as much a part of the contract as though it were expressly referred to and incorporated in its terms; and the same is true of the law of the place where it is to be performed. The reason for this rule ordinarily is that it is presumed that the parties had such law in contemplation when the contract was made.’ ” Denice v. Spotswood I. Quinby, Inc., 248 Md. at 433-434, quoting 17A C.J.S. Contracts § 330 (1963).

This principle provides little assistance in the present case. Assuming both parties contracted cognizant of the parental immunity, must we not assume that Shell would have intended the general language of indemnification to waive the immunity? This compels a judicial imputation of a specific intent where none exists. On the other hand, assuming Ryckman’s cognizance of it, how can we assume he would intend to waive his own immunity solely to his or his child’s detriment, when in Montz we declined to do that when the result would have been to the parent’s and child’s benefit? This construction has at least the benefit of requiring that we add nothing by judicial imputation.

The answer seems to lie in facing head on a policy decision. If we are to be consistent with Montz and Schneider, we must hold that any waiver of parental immunity must be expressly indicated. Waiver of that immunity will not be “presumed” or “inferred” from broadly written, stock language indemnity provisions. Had we been free to digress from the rigidity of Schneider, we would have readily done so in Montz as indicated by Chief Judge Gilbert’s compelling reasoning.

Common sense dictates that the parties at the time of contracting did not contemplate the circumstances pressed upon the court in this case. To “presume” an intent to waive presupposes “contemplation” of these circumstances; that would allow a legal fiction to fly in the face of reason and to prevail. We will not so presume.

Judgment affirmed.

Costs to be paid by appellant.

      . “Any provision of a lease or other rental agreement relating to real property whereby a lessee or tenant enters into a covenant, agreement or contract, by the use of any words whatsoever, the effect of which is to indemnify the lessor or landlord or hold the lessor or landlord harmless, or preclude or exonerate the lessor or landlord from any or all liability to the lessee or tenant, or to any other person, for any injury, loss, damage or liability arising from any omission, fault, negligence or other misconduct of the lessor or landlord on or about tne leased or rented premises or on or about any elevators, stairways, hallways or other appurtenances used in connection therewith, and not within the exclusive control of the lessee or tenant, shall be deemed to be against public policy and void.”
      Now Md. Real Prop. Code Ann. § 8-105 (1974).

      . Shell settled with Terry “at the trial table.” Its concern here is with its _right to seek indemnification under its counterclaim which was aborted by the summary judgments.


author: Liss, J.,

text:
    JACK O. CHERTKOF, Trustee v. DEPARTMENT OF NATURAL RESOURCES, WATER RESOURCES ADMINISTRATION et al.
    [No. 1253,
    September Term, 1978.]

      Decided July 9, 1979.

    The cause was argued before Moore, Mason and Liss, JJ.

      M. Natalie McSherry, with whom were Whiteford, Taylor, Preston, Trimble & Johnston on the brief, for appellant.

      Thomas A. Deming, Assistant Attorney General, with whom were Stephen H Sachs, Attorney General, and Edward F. Lawson, Assistant Attorney General, on the brief, for appellee Department of Natural Resources, Water Resources Administration.

      John M. Court, Assistant County Solicitor for Anne Arundel County, with whom was Richard Lazer Hillman, County Solicitor, on the brief, for other appellee.
   Liss, J.,

delivered the opinion of the Court.

This case arises out of an order of the Circuit Court for Anne Arundel County which dismissed an appeal by the appellant, Jack O. Chertkof. The appeal was from a decision of the Board of Review of the Department of Natural Resources that affirmed the appellee, Department of Natural Resources, Water Resources Administration’s issuance of a waterway construction permit to Anne Arundel County. The appeal was noted in the Circuit Court for Anne Arundel County on March 12, 1976. Demurrers were filed by Anne Arundel County (hereinafter, the County) and the State of Maryland which were sustained with leave to amend on July 14, 1976. An amended petition was filed on August 16,1976. Demurrers filed by the State and the County were overruled on November 9,1976. The case came on for hearing on June 19, 1978. It was submitted on the basis of the record before the Department and a full and complete argument was held. On October 18,1978, the trial court ordered that the amended petition for appeal be dismissed. It is from that order that this appeal was taken.

The permit issued by the Department of Natural Resources authorized Anne Arundel County to alter, in part, the course, current and cross section of Cabin Branch, and to construct a new roadway which would be necessitated by the changes made to Cabin Branch. Cabin Branch is a small intermittent stream in northern Anne Arundel County. The drainage area of Cabin Branch at the downstream end of the permit site consists of 1177 acres. The area lies to the northeast of the Baltimore-Washington International Airport and encompasses parts of residential subdivisions known as “Shipley” and “Woodlawn Heights.” Cabin Branch flows from west to east under the W.B.&A. railroad embankment, Maryland Route 648, Ritchie Street (not to be confused with Ritchie Highway), and thence, under Maryland Route 3 and on toward Curtis Creek.

The appellant owns a long tract of land in Anne Arundel County of approximately fifteen parcels totaling 150 acres that measure approximately four miles in length adjacent to and contiguous with Cabin Branch from headwaters to tidal waters. The controversy between the appellant, and the appellees dates back to 1970 when the County first began developing a series of storm drains and culverts which upon completion would drain into Cabin Branch. At that time, the appellant sought injunctive relief by way of a suit filed against the Department of Natural Resources requesting that the County be required to maintain Cabin Branch as a part of the storm water system of Anne Arundel County so as to prevent the creation of a nuisance and to provide adequate means for passing off the waters which would be concentrated and increased by the construction of the contemplated storm drains and culverts. Appellant also sought to have the Anne Arundel Circuit Court require the County to channelize Cabin Branch so that the waterway would be adequate to assume the expected increased flow. That action ultimately reached the Court of Appeals in the case of Chertkof Trust v. Department of Natural Resources, 265 Md. 291, 289 A. 2d 314 (1972). The appellant’s complaint in that case was dismissed as premature because construction on the storm drains had not yet begun, and because the appellant failed to exhaust its administrative remedies by noting an appeal to the Board of Review of the Department of Natural Resources.

The first applications for permits involving Cabin Branch were filed by Anne Arundel County in 1971. Two applications were filed at that time. The first involved the application here in controversy. The second was an application to replace the culvert under the W.B.&A. embankment upstream from appellant’s property with a larger culvert. The latter application was withdrawn at the time of the 1973 hearing before the Water Resources Administration and was referred back to Anne Arundel County for restudy. The remaining application included the County’s proposal to locate a new road, Burwood Road, along Cabin Branch between Route 648 and Ritchie Street. To implement the proposal, the County proposed to enlarge the existing culverts under Route 648, to erect a new one under Ritchie Street, and to construct a new channel for Cabin Branch extending easterly from Maryland Route 648 for approximately 1900 feet and then transecting into the existing channel of Cabin Branch. Appellant’s property in the area of the Burwood Road project and downstream is flat. The stream channel is shallow. As a result, depending on the magnitude of storm related flow, a portion of the flat land would be included in the flood plain for Cabin Branch. No present development of any kind exists on the portion of appellant’s land which might be affected by the occasional incidence of floodwaters.

In support of its permit application, the County, in the hearing before the Water Resources Administration, submitted engineering data which included an estimate of floodwaters in Cabin Branch resulting from a fifty-year storm event. After a lengthy hearing, the Administration concluded that the expected flow from the entire drainage area above the Burwood Road project site was estimated to be 1700 cubic feet per second (c.f.s.). This was on the assumption that the proposed new W.B.&A. culvert would freely pass such flows. Mr. Chertkof testified at the October, 1973 hearing before the Board of Review that he had his own expert verify the calculations of the County. As we read the transcript, Mr. Chertkof did not challenge the figure of 1700 c.f.s. but accepted this estimate. The Board determined that the Department properly had concluded that the culverts and channel of the Burwood Road project would safely carry such floodwaters. Appellant did not appeal this determination. The Board of Review also determined, however, that the Department had not considered sufficiently the impact of additional fifty-year flood flows, attributable to the Burwood Road project itself, on downstream areas.

On the basis of this conclusion, the Board of Review remanded the application to the Department of Natural Resources for further investigation.

On remand, the Department requested and the County submitted a supplemental engineering report concerning the impact of floodwaters downstream from the project. Employing the formula used previously the engineers determined that in a fifty-year storm the Burwood Road project would contribute an additional forty c.f.s. to the 1700 c.f.s. flow. The consulting engineers (John E. Harms, Jr. and Associates, Inc.) calculated that this additional flow would increase stream depth by .25 inch and stream width by 14.5 inches. A rehearing on the issuance of the permit was held before the Board of Review on January 12,1976, and at that rehearing the same engineers filed a supplemental report which showed an increase of depth in the channel of .25 inch, with a slight back-up at the existing culvert under Route 3 causing an increase in depth at that point of 2.5 inches. The corresponding increases in spread would be 1.5 feet in the channel as a whole and three feet at the Route 3 culvert.

On reviewing the engineers’ report, an expert for the Department concluded that “the difference between flooding characteristics before and after this proposed project are so insignificant that it is impractical to measure the difference.” Based on this evidence, the Board of Review concluded that the permit issued on July 7, 1975 had been properly issued.

It is from this action that the petition to the Circuit Court for Anne Arundel County was filed.

Appellant contends that there are four issues to be determined by this appeal. He states them to be as follows:

1. Was the lower court correct in affirming the decision of the Board of Review where that decision was based upon an assumption as to existing conditions, which assumption was unsupported by the evidence?

2. Was the lower court correct in affirming the decision of the Board of Review where that decision was based upon testimony which assumed optimum future development rather than existing conditions?

3. Was the lower court correct in affirming the decision of the Board of Review where that decision failed to make any provision protecting appellant’s property from the adverse effects of the project proposed?

4. Was the lower court correct in affirming the decision of the Board of Review, which decision considered only the isolated effects of one project, when that project is part of an overall scheme of development which will, in total, cause significant adverse effects to the appellant’s property?

1 and 2

Appellant contends that the decision of the Board of Review as to the effect of the Burwood Road project was unsupported by any competent or substantial evidence. He suggests the reports of Harms and Associates were made on the basis of assumptions which were incorrect and without any basis in fact. In his argument to substantiate these conclusions, he offers his contention that the State neglected to consider the crucial distinction between theoretical runoff and actual streamflow. As a legal basis, he relies on A. H. Smith Sand and Gravel Co. v. Department of Natural Resources, 270 Md. 652, 313 A. 2d 820 (1974), which he says renders erroneous the Department’s assessment of flood impacts downstream from Burwood Road on the basis of “expected” flows rather than “existing” flows. He suggests that the damming of floodwaters at the inadequate W.B.&A. culvert creates an “existing” fifty-year flood frequency at the Burwood Road project of a level (unspecified) far less than 1700 c.f.s., and that such a lower flood estimate should have been used in the Department’s analysis of the permit.

We conclude from our reading of the record that the appellant never raised this issue before the Water Resources Administration or at the several hearings before the Board of Review, and that the issue was raised for the first time after the hearing in the Circuit Court on appeal by the filing of a fifteen-page memorandum which called the trial court’s attention to A. H. Smith, supra, and to appellant’s belief that the 1700 c.f.s. determination was incorrect factually and légally. The memorandum was not made a part of the record in this case and is, therefore, not before us.

We think A. H. Smith, supra, is inapposite to the present case. The Court of Appeals explicitly limited its holding in that case when it said: “We are not obligated at this time to determine what should or should not be taken into consideration in planning. The issue here is a jurisdictional one insofar as the Department is concerned,” 270 Md. at 665.

However, even if Smith were applicable, the' appellant would be precluded from raising a theory in this appeal upon which it now relies for the first time. We have said innumerable times that except under unusual circumstances, we will abide by Maryland Rule 1085 which says, “This Court will not ordinarily decide any point or question which plainly does not appear by the record to have been tried and decided by the lower court.” To permit appellant after nine years of controversy to raise an entirely new theory which was never espoused at any point in the long drawn out administrative process would make a mockery of the appellate process. A petitioner is bound to the theory he elects to pursue at trial. Kasten Construction Co. v. Jolles, 262 Md. 527, 278 A. 2d 48 (1971); Brehm v. Philadelphia B. & W. R. Co., 114 Md. 302, 79 A. 592 (1911). This is particularly true in administrative proceedings in which a party must avail himself of the opportunity to present his position before the proper administrative body as failure to do so would preclude his being heard by a reviewing court. Hathcock v. Loftin, 179 Md. 676, 22 A. 2d 479 (1941). Similarly, in Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U. S. 519, 98 S. Ct. 1197 (1978), an environmental group raised written questions about the adequacy of administrative consideration of energy conservation alternatives. When the agency held a hearing on its draft environmental impact statement, the group did not participate. The United States Court of Appeals for the District of Columbia found that the agency had failed to consider adequately the points raised by the protesting group. The Supreme Court reversed and stated a philosophy concerning administrative proceedings which we think is singularly appropriate in this appeal. The Court said:

Indeed, administrative proceedings should not be a game or a forum to engage in unjustified obstructionism by making cryptic and obscure reference to matters that “ought to be” considered and then, after failing to do more to bring the matter to the agency’s attention, seeking to have that agency determination vacated on the ground that the agency failed to consider matters “forcefully presented.” [435 U. S. at 553-554]

In the case at bar, appellant did not refer to his contention now before this Court that some figure less than 1700 c.f.s. should be used as a basis for determining the downstream flood impact of the Burwood Road project until the point in the proceedings we heretofore noted. At the original hearing before the Board of Review in 1973, all parties concurred in accepting 1700 c.f.s. as an appropriate estimate for assessing the ability of the Burwood Road project to carry floodwaters and as a basis for analyzing downstream impact. A. H Smith, supra, was decided in January, 1974, but there is no indication in the voluminous record in this case that appellant indicated his reliance on that decision to the County, the Department, or the Board of Review. Nor was the issue raised in appellant’s comments on the engineering report of April, 1974, nor in appellant’s request for a second hearing before the Board of Review. As late as January, 1976 at the second hearing before the Board of Review, appellant did not challenge the supplemental report of the engineering expert, but chose instead to offer no testimony. The appellant’s petition of appeal to the Circuit Court mentions no alleged error in the acceptance of the Department’s estimate of floodwaters at 1700 c.f.s.

It is not our function as an appellate court to consider issues not raised, considered or decided in the court below. Our review, particularly in appeals from administrative bodies, must be limited to the determination based on the record. We must necessarily limit our consideration to whether the agency had before it substantial evidence to support its conclusions, and whether these conclusions were arbitrary, illegal or capricious. Considering the state of the record in this case and in deference to Rule 1085, we will not review the new issue raised by the appellant in this appeal. The record is more than sufficient to establish that the Board of Review had before it substantial evidence to support its conclusions, and we find nothing illegal, arbitrary or capricious in its actions.

3 and 4

Appellant next contends that the Board of Review acted arbitrarily in not requiring specified terms and conditions in connection with the construction permit in order to preserve existing conditions and. to protect the property owned by appellant and others.

Section 8-807 (b) of the Natural Resources Article of the Maryland Code (1974) provides that where proposed construction is inadequate or detrimental to the public interest the Department may require modification of the plan or include any conditions or terms necessary in granting a permit. See Oxon Hill Recreation Club, Inc. v. Water Resources Administration, 281 Md. 110, 114, 375 A. 2d 567 (1977), where the Court of Appeals said, “It is not permissible for the Court to substitute our judgment for that of the agency if its determination finds any support in the facts,” (citations omitted). The record, we find, amply supports the Board’s decision not to require any conditions, and indicates that the Board recognized its obligation to public safety and welfare. According to the testimony before the Board, additional floodwaters attributable to the Burwood Road project were estimated to increase the width of out of channel flooding by at most one and one-half feet. Appellant’s land adjoining the proposed Burwood Road project is flat, vacant and briar covered. Appellant offered no evidence to establish that the County’s actions in Cabin Branch have increased runoff to an extent greater than that arising wholly from the changes in character of the surface “produced by the opening of streets, building of houses, and the like in the ordinary and regular course of expansion.” See Kennedy-Chamberlin Development Co. v. Snure, 212 Md. 369, 376, 129 A. 2d 142 (1957).

Appellant has offered no evidence that it has suffered any actual damage. Appellant has ignored the plain directive of the Court of Appeals in the case of Chertkof Trust v. Department of Natural Resources, supra, when the Court offered future guidance to the appellant and indicated that any claim for injunctive relief would have to be based on proof of specific damage and specific causes for that damage. The courts have ample general equity powers to deal with such damages if they occur in the future.

We have no quarrel with appellant’s statement of the law that where a stream is adopted as an integral part of the public sewage or storm water system, the appropriate governmental body is required to maintain the stream in such a manner as to prevent damage to adjoining landowners. City of Baltimore v. Landay, 258 Md. 568, 267 A. 2d 156 (1970); Kurrle v. City of Baltimore, 113 Md. 63,77 A. 373 (1910); City of Baltimore v. Merryman, 86 Md. 584, 39 A. 98 (1898); Kranz v. City of Baltimore, 64 Md. 491, 2 A. 908 (1886).

Unfortunately, appellant has not offered sufficient evidence to prove that Cabin Branch has become an integral part of the storm water system of Anne Arundel County; nor has he offered such evidence of damage to his property as would require the affirmative action of the County to avoid such damage.

Judgment affirmed; costs to be paid by appellant.