text:
    JAMES LESLIE ADAMS, JR. v. STATE OF MARYLAND
    [No. 1400,
    September Term, 1978.]

      Decided October 11, 1979.

      The cause was argued before Moylan and MacDaniel, JJ., and Howard S. Chasanow, Associate Judge of the Seventh Judicial Circuit, specially assigned.

      George E. Burns, Jr., Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Warren B. Duckett, State’s Attorney for Anne Arundel County, and Ronald M. Naditch, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee.
   Chasanow, J.,

delivered the opinion of the Court.

The appellant was tried and convicted in the Circuit Court for Anne Arundel County of first degree rape, first degree sexual offense, burglary, and assault and battery. The charges arose out of an incident which took place on April 6, 1978, when someone broke into the victim’s apartment, struck her with a blunt object, performed cunnilingus on her, and raped her. During the course of the assault, the victim engaged her assailant in conversation in an attempt to convince him that a friend was coming to see her and to dissuade him from harming her. At some point, the attacker gave his name as Gregory, and the victim falsely gave her name as Nancy. After the completion of the rape, the victim told her attacker, “God bless you, Gregory, for not hurting me anymore.” Before leaving the victim’s residence, her attacker said, “God bless you, Nancy.”

In the course of the police investigation, the victim made a photographic identification, a voice identification, and a lineup identification; the latter two identifications are at issue here. On the morning following the attack, after reviewing an extensive number of photographs, the victim identified either four or six photographs of persons who resembled her attacker. On April 14, 1978, the police attempted to secure a voice identification by placing telephone calls from the police station while the victim listened on an extension telephone which had the mouthpiece removed. A total of four telephone calls were placed; three in the morning and the fourth later that afternoon. The first two were made to police officers within the department; the third was placed to the appellant’s telephone, but he was not at home; and the fourth call was placed that afternoon, again to the appellant’s home. The police officer who placed the calls, identified herself as a Miss Wetzel from the Department of Social Services and engaged the recipient of the call in conversation. By listening to the speech patterns, the victim was able to reject the first two, but identified the recipient of the fourth call as “Gregory,” her assailant, as soon as he said, “Hello,” on the telephone.

On the same day the phone calls were made, the appellant was arrested and placed in a lineup with four other participants. The appellant was the only person in the lineup whose photograph was initially selected by the victim as one of the four or six persons who resembled her attacker. When the victim saw the. men in the lineup, she identified the appellant as her attacker. As a further measure, each of the participants was asked to say, “God bless you, Nancy.” The victim again identified the appellant’s voice after the words were spoken.

The appellant objected to the admission into evidence of a statement blurted out by him at the time of his arrest. The arresting officer testified, over objection, that as the appellant was being arrested he stated, “You guys are hassling me again for something that occurred a week ago. I didn’t have nothing to do with it and you guys are hassling me.” The appellant contends that this statement was a product of an illegal arrest and should have been suppressed.

The Maryland Wiretapping and Electronic Surveillance Act

The appellant first argues that the trial judge erred in admitting the testimony concerning the voice identification made by the victim. The objection was based on the Maryland Wiretapping and Electronic Surveillance Act, Cts. and Jud. Proc. §§ 10-401 through 10-412 (1977) (1978 cum. supp.) (hereinafter referred to as the Act). Under the Act, Section 10-402 (a) (1) makes it unlawful to:

“Willfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire or oral communication.”

Section 10-401 defines certain terms used in the Act. It includes the following definitions pertinent here:

“(3) ‘Intercept’ means the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device;
(4) ‘Electronic, mechanical, or other device’ means any device or apparatus which can be used to intercept a wire or oral communication other than.
(i) Any telephone or telegraph instrument, equipment or facility, or any component thereof, (a) furnished to the subscriber or user by a communications common carrier in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business; or (b) being used... by an investigative or law enforcement officer in the ordinary course of his duties.” (Emphasis added.)

Moreover, whenever any wire or oral communication has been intercepted in violation of the Act, “... no part of the contents of the communication and no evidence derived therefrom may be received in evidence ....” Id., § 10-405.

The issue posed by the appellant is whether an extension telephone used at the direction of a police officer, in a police station under the circumstances of this case, constitutes an “electronic, mechanical, or other device” as defined in the Act. If the extension was furnished to the subscriber by a communications common carrier in the ordinary course of its business and was used by the subscriber or user in the ordinary course of business or if the extension was used by an investigative or law enforcement officer in the ordinary course of his duties, the telephone extension would not be an “electronic, mechanical, or other device” as defined in the Act, and there would be no interception.

It must first be noted that although the actual eavesdropping was by the victim, who was a passive, non-participating party to the telephone conversation, the victim was acting as an agent of a law enforcement officer. The victim was asked to go to the station to assist in the investigation and was asked to sit at the extension telephone to listen, and in that regard, the use of the extension was at the direction of and by an investigative or law enforcement officer.

The status of an extension telephone as a device for telephonic interception has been at issue in a number of cases under various statutes. The Federal Communications Act of 1934, 47 U.S.C. § 605, provided, in part, that “no person not being authorized by the sender shall intercept any communication —” The United States Supreme Court in Rathbun v. United States, 355 U.S. 107,78 S.Ct. 161,2 L.Ed.2d 134 (1957), held that when a party receiving a phone call consents to the police using an extension telephone to listen to a conversation, there is no violation of the statute, since an extension telephone is not a device used for interception of messages. The Court noted:

“The telephone extension is a widely used instrument of home and office____ The clear inference is that one entitled to receive the communication may use it for his own benefit or have another use it for him____Common experience tells us that a call to a particular number may cause the bell to ring in more than one ordinarily used instrument. Each party to a telephone conversation takes the risk that the other party may have an extension telephone and may allow another to overhear the conversation.” 355 U.S. at 109-111.

The basis underlying the Rathbun decision has also been applied where the police listened in on the extension phone of the person who placed the call, rather than the one who received it. See, for example, United States v. Pate, 330 F.2d 126 (7th Cir. 1964), cert. den. 379 U.S. 891, 85 S.Ct. 165, 13 L.Ed.2d 95 (1964); Ladrey v. Commission on Licensure to Practice, 261 F.2d 68 (D.C. Cir. 1958), cert. den. 358 U.S. 920, 79 S.Ct. 288, 3 L.Ed.2d 239 (1958), where it was noted:

“No one is bound to answer a ringing telephone. If he does pick up the receiver, he is not required to talk to the outside caller. If he chooses to talk, he may well understand that the calling party, the original ‘sender’ may have others listening to the conversation, whether in a group around the caller’s telephone or on an extension attached to it.” Id., at 72-73.

In Maryland, the predecessor to our current Wiretapping and Electronic Surveillance Act provided, in part, that no person shall:

“Obtain or attempt to obtain the whole or any part of a telephonic or telegraphic communication to which such person is not a participant by means of any device, contrivance, machine or apparatus, whether electrical, mechanical, manual or otherwise, unless consent is given by the participants.” Md. Ann. Code, Art. 35, § 93 (a) (Repealed by Ch. 2, Laws of Maryland, Special Session, 1973.).

In Clark v. State, 2 Md. App. 756, 237 A.2d 768 (1968), cert. den. 394 U.S. 1001, 89 S.Ct. 1597, 22 L.Ed.2d 779 (1969), we noted that although the Maryland Act and the federal statute (47 U.S.C. § 605) differed in material aspects, we found the observations made in Rathbun applicable to Maryland despite the difference in statutory language:

“... we do not believe that the Legislature intended to place a severe restriction on the ordinary usage by subscribers of telephone extensions by denying the subscriber the right to allow a family member, an employee, a friend, or the police to listen to a conversation to which the subscriber is a party.” 2 Md. App., at 765.

In Clark, an arson victim allowed the police to listen on a telephone extension in her home while she called the defendant in an attempt to elicit a confession from him. During one of these conversations, the defendant admitted his complicity in the crime and we held the police officer’s testimony was properly admitted. In that opinion, Chief Judge Murphy noted:

“... the admissibility in evidence of the contents of a communication overheard on a regularly used telephone extension is not controlled by the provisions of the Maryland Wire Tapping Act, since the Legislature never intended that the use of such an extension telephone would be considered as a means for ‘intercepting’ or ‘obtaining’ a telephonic communication within the meaning of the Act____” 2 Md. App., at 765-766.

In 1968, Congress passed a comprehensive electronic surveillance law in Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 through 2520 (1970). Maryland followed suit, and in 1977 the legislature enacted a new Wiretapping and Electronic Surveillance Act, Cts. and Jud. Proc. §§ 10-401 through 10-412, which replaced our prior statute. The Maryland statute closely parallels Title III of the federal statute, Smith v. State, 283 Md. 156, 161, n.2; 389 A.2d 858, 861, n.2 (1978), aff’d, 61 L.Ed.2d 220 (1979), but it differs in several aspects, two of which may be pertinent to the instant case. These two differences arise in connection with interception of communications generally, found in the Maryland Act at § 10-402 and in the federal act at 18 U.S.C. § 2511. Federal law provides:

“(c) It shall not be unlawful under this chapter [18 U.S.C. § 2510 et seq.] for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.
(d) It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire or oral communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception____” 18 U.S.C. § 2511 (2). (Emphasis added.)

In 1973, our legislature passed House Bill 962 which included these provisions allowing for interceptions when only one party consents. The Governor vetoed the bill, citing the two provisions and stating: “The very opportunity for unwarranted spying and intrusions on people’s privacy authorized by this bill is frightening____” 1973 Md. Laws 1925. In 1977, the legislature again passed a wiretap act; this time with the following substitutes for the sections which the Governor found so offensive:

“(2) It is lawful under this subtitle for an investigative or law enforcement officer acting in a criminal investigation or any other person acting at the prior direction and under the supervision of an investigative or law enforcement officer to intercept a wire or oral communication in order to provide evidence of the commission of the offenses of murder, kidnapping, gambling, robbery, any felony punishable under the ‘Arson and Burning' subheading of Article 27, bribery, extortion, or dealing in controlled dangerous substances, or any conspiracy to commit any of these offenses, where the person is a party to the communication or one of the parties to the communication has given prior consent to the interception.
(3) It is lawful under this subtitle for a person to intercept a wire or oral communication where the person is a party to the communication and where all of the parties to the communication have given prior consent to the interception ..Cts. and Jud. Proc. § 10-402 (c) (1977) (1978 cum. supp.) (Emphasis added.)

The effect of the changes in language is that an “interception” will be lawful only if all of the participants to the communication give their consent to interception. There is the exception, not applicable in this case, for an investigative or law enforcement officer acting with consent of only one of the parties, in order to provide evidence of certain designated crimes. Cts. and Jud. Proc. § 10-402 (c) (2) (1977) (1978 cum. supp.)

Thus, by making both participants’ consent mandatory, our law has imposed stricter requirements for civilian monitoring than has federal law and in designating certain offenses where one party can consent to interception by a law enforcement agent, the legislature has restricted monitoring by investigative or law enforcement officers. See, R.P. Gilbert, A Diagnosis, Dissection, and Prognosis of Maryland’s New Wiretap and Electronic Surveillance Law, 8 U.Balt.L.Rev. 183,194 (1979); Legislation, The 1977Maryland Wiretapping and Electronic Surveillance Act, 7 U.Balt.L.Rev. 374 (1978). We note that the crimes designated in the Act do not include any of the crimes with which the appellant was charged, so section 10-402 (c) (2) would not authorize interception with consent of only one party in the instant case. Id.

Although the federal and Maryland acts differ in these two respects, in the section which is dispositive of the issue before us, the federal and the Maryland acts are identical; both acts define the terms “intercept” and “electronic, mechanical, or other device,” using the same language. Although the cases such as Rathbun and Clark were not decided under the current law, much of the underlying rationale for those opinions can be found in the statutory definitions.

The definition of intercept, as set forth above, includes the necessity for the use of an electronic, mechanical, or other device. Thus, some kind of “device” must be used, and for example, to overhear a private conversation by the use of one’s senses alone without the aid of an electronic, mechanical, or other device would not constitute an interception under the Act; nor would holding a telephone receiver away from one’s ear to allow a third person to listen. In United States v. McLeod, 493 F.2d 1186 (7th Cir. 1974), the court held that a government agent who stood near the defendant while she placed a call on a public telephone and without any listening device overheard her end of the conversation, did not “intercept” a wire or oral communication.

The statutory definition of an electronic, mechanical, or other device as set out above, is an all inclusive one with certain listed exceptions. The exceptions for those instruments which do not constitute devices under the Act include any telephone instrument, equipment or facility, or any component thereof which is either furnished to the subscriber or user by a communications common carrier in the ordinary course of its business and being used by the subscriber or user in the ordinary course of business; or a telephone instrument, etc. which is being used by an investigative or law enforcement officer in the ordinary course of his duties. Because the federal statute is identical to our own in the critical sections defining “intercept” and “electronic, mechanical, or other device” (Compare 18 U.S.C. § 2510 (4) and (5) with Cts. and Jud. Proc. § 10-401 (3) and (4)), we may turn to the federal courts for guidance. With regard to the ordinary course of business exception, the appellant relies on United States v. Harpel, 493 F.2d 346 (10th Cir. 1974), for the proposition that “a telephone extension used without authorization or consent to surreptitiously record a private telephone conversation is not used in the ordinary course of business.” Id., at 351. However, the issue before that court was not simply listening in on an extension telephone, but was a surreptitious use of the extension telephone by the attaching of a suction cup to the instrument to record the conversation without authorization or consent from either party. The court did not go so far as to hold that án extension telephone could never be used in the ordinary course of business, but rather that, "we do not feel a telephone used in the manner contemplated under the facts of this case is employed in the ordinary course of business.” Id., at 352. Other federal courts have dealt with the question of “ordinary course of business” and have held that the use of an extension telephone, even without the express consent of the parties, can under some circumstances be a use “in the ordinary course of business.” In a marital or domestic setting, at least one federal court of appeals has stated that there was no prohibited interception when a person eavesdrops on a family member’s telephone conversations by use of an extension telephone in the family home, since such use would be in the ordinary course of the user’s business. Anonymous v. Anonymous, 558 F.2d 677 (2d Cir. 1977). In a recent case, a United States District Court held that a manager of a company, who had reason to believe one of his employees was acting in concert with an outsider to the detriment of the company, was acting in the ordinary course of business and consequently, there was no “interception” when he used an extension telephone to monitor a telephone conversation between two parties without their consent or knowledge. Briggs v. American Air Filter Co., Inc., 455 F.Supp. 179 (N.D.Ga. 1978). The Tenth Circuit, which decided Harpel, implicitly reasoned that the degree of surreptitiousness was one factor to be considered in determining whether a telephone extension was being used in the ordinary course of business. James v. Newspaper Agency Corp., 591 F.2d 579 (10th Cir. 1979), involved a newspaper organization which monitored telephone conversations of its employees in order to both protect against abuses by customers and also to aid in training and instructing employees how to better deal with customers. The court found the eavesdropping was not surreptitious, but was done with the advance knowledge of both management and employees, and was for a legitimate business purpose; therefore, there was no “interception” since the equipment was used in the ordinary course of business. The Florida Supreme Court has recently held that there was no interception when a supervisor listened over a telephone extension to a conversation between her employee and a third party, where the employee gave her consent and where the eavesdropping was during business hours for a business purpose. The Florida Supreme Court upheld the trial court’s conclusion that although the telephone eavesdropping was, in part, to “satisfy curiosity,” the supervisor was acting in her official capacity, the eavesdropping was for the benefit of the employer, and it was therefore in the ordinary course of business. State v. Nova, 361 So.2d 411 (Fla. Sup. Ct. 1978).

The appellant contends that since the mouthpiece of the telephone extension was removed, it could not be a telephone instrument. The short answer to this contention is that the Act excepts any telephone instrument, equipment or facility, or any component thereof, and the mere removal of part of the telephone instrument does not convert the instrument into some other apparatus not covered by the telephone exception.

Another exception to the definition of “electronic, mechanical, or other device” is the investigative or law enforcement officer’s use of a telephone instrument, equipment or facility, or any component thereof “in the ordinary course of his duties.” Cts. and Jud. Proc. § 10-401 (4) (i) (b) (1977) (1978 cum. supp.). The construction of the term “in the ordinary course of his duties,” as used in the Wiretapping and Electronic Surveillance Act, is one of first impression in the State of Maryland. The appellant cites People v. Tebo, 37 Mich. App. 141, 194 N.W.2d 517 (1971), in support of his contention that in the instant case, the activity in question was not in the ordinary course of the duties of the Annapolis City Police Department. In Tebo, the sheriff’s department, as a matter of course, listened in on all phone calls made by inmates from the jail, allegedly for the purpose of limiting long distance telephone calls. During the defendant’s trial, an undersheriff who eavesdropped on the defendant’s phone conversation was allowed to testify as to the contents thereof. The court held that the evidence was erroneously admitted and further held that “... a police officer is acting in the ordinary course of his duties within 18 U.S.C.A. § 2510 (5) (a) when he acts under a duly authorized court order or comes within 18 U.S.C.A. § 2511 (2) (c).” Id., at 522.

We first note that in Tebo neither party to the conversation consented to the eavesdropping. In the instant case, since the victim was an agent of the police officer and had consent of one of the parties to the communication, the provision of 18 U.S.C. § 2511 (2) (c) would apply and under the Tebo rationale, the eavesdropper could be acting within the ordinary course of his duties.

However, the appellant cites Tebo for the proposition that under the Maryland Act, “in the ordinary course of his duties” should be read as meaning only when an officer acts under a duly authorized court order or comes within section 10-402 (c) (2), which authorizes interception with consent of one party to provide evidence of a limited number of designated crimes, none of which were committed by the appellant. The appellant’s reading of the phrase is unduly restrictive. Since this is a matter of interpretation, we look to principles of statutory construction to determine the meaning of the phrase. A general rule of statutory construction is that a statute should be read and construed, if possible, so that no clause is rendered surplusage, superfluous, meaningless, insignificant or nugatory. See, Mazor v. State Department of Correction, 279 Md. 355, 369 A.2d 82 (1977); Police Commissioners of Baltimore City v. Dowling, 281 Md. 412, 379 A.2d 1007 (1977).

The Act authorizes law enforcement personnel to intercept, using any type of electronic or mechanical device, with one party’s consent, to provide evidence of certain designated crimes under § 10-402 (c) (2). Therefore, it would seem that the language in § 10-401 (4) (i) (b), pertaining to the use of telephone equipment by law enforcement officers acting in the ordinary course of their duties, authorizes the use of telephone equipment in circumstances not covered by other sections of the Act, otherwise the language would be surplusage and superfluous. We find that under § 10-401 (4) (i) (b), the specific exception for telephone extensions and other telephone components gives broader latitude in the use of telephone instruments and components than is given for the use of other types of electronic surveillance equipment, such as hidden microphones or tape recorders.

Clearly this section is not meant as a substantial loophole in the protection afforded by the Act. On the other hand, the section must be interpreted as giving some authorization to an investigative or law enforcement officer to use telephone equipment without the express consent of both parties. It is clear that the term “ordinary course of his duties” must include only lawful and proper activities and it is both a limitation as well as a protection.

In the instant case, the police were investigating a crime and attempting to apprehend the perpetrator. The manner in which the extension telephone was used was lawful and proper and was in the ordinary course of police duties. Used in such a manner, the extension phone does not constitute an “electronic, mechanical, or other device.” Further, since the extension phone was not a “device” within the meaning of the Act, there was no “interception” and hence no violation of the provisions of the Act.

Inasmuch as the extension telephone was used by a police officer, acting within the ordinary course of duties, we need not and do not reach a decision as to whether, in the circumstances of the instant case, such use also falls within the exception for use of extension telephones or telephone equipment by the subscriber in the ordinary course of business.

The Lineup

The appellant next argues that the trial court erred in refusing to suppress the evidence of the lineup. His grounds are twofold: first, that it was “based on the improper voice identification”; and second, that the appellant was the only one of the four or six people identified by the victim in the photographic display to be included in the lineup.

In order to determine the admissibility of an out of court identification, we look to the standard established by the United States Supreme Court. The Court has noted that the primary evil to be avoided in an out of court identification is a substantial likelihood of misidentification and “... it is the likelihood of a misidentification which violates a defendant’s right to due process____” Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381-382, 34 L.Ed.2d 401, 411 (1972). Reliability, not suggestiveness, is the linchpin in making the determination of admissibility and if in the totality of the circumstances there was no substantial likelihood of misidentification, the pre-trial identification is admissible, even if suggestive. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). In order to evaluate the likelihood of a misidentification, we must consider several factors including the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Neil v. Biggers, supra; Manson v. Brathwaite, supra; Foster and Forster v. State, 272 Md. 273, 323 A.2d 419, cert. den. 419 U.S. 1036, 95 S.Ct. 520, 42 L.Ed.2d 311 (1974); Godwin v. State, 38 Md. App. 716, 382 A.2d 596 (1977), rev’d other grounds, 284 Md. 85 (1978); Dobson v. State, 24 Md. App. 644 (1975), cert. den. 275 Md. 747 (1975).

We consider these factors one by one. The victim was awakened by her assailant who was standing in front of her while she was in bed. The assailant remained in her apartment for a period of forty to forty-five minutes, during which time he performed cunnilingus on her and raped her. He was quite close to the victim and they engaged in conversation during the time he remained in her apartment. The victim testified that she saw side and full face front views of her assailant at the time of the attack and that she watched him “intently” on two separate occasions for a total of about four to five minutes. The victim gave a full and detailed description of her assailant to the police, as well as a thorough description of the qualities of his voice. When the victim viewed the lineup, she immediately identified the appellant as the man who raped her. After the initial physical identification, each man was asked to step forward and say, “God bless you, Nancy,” whereupon the victim again positively identified the appellant. The lineup took place on the evening of April 14, 1978, some eight days following the incident.

Although there may have been a degree of suggestiveness in the fact that the appellant was the only person in the lineup whose photograph was one of the four to six initially selected by the victim as resembling her assailant, the evidence clearly indicates that under the totality of the circumstances, the lineup identification was reliable, and there was no substantial likelihood of a misidentification. The trial court did not err in refusing to suppress the identification testimony.

The Statement

The appellant’s final argument is that the trial judge erred in admitting into evidence the appellant’s statements following his arrest. The appellant contends that the statements resulted from an arrest which was illegal because it was based on a voice identification which the appellant contends was illegal. Ryon v. State, 29 Md. App. 62, 349 A.2d 393 (1975), aff’d 278 Md. 302 (1976). Having already decided that the voice identification was proper, we further conclude that there was ample probable cause for the arrest warrant to have been issued. The photographic identification, coupled with the victim’s positive identification of the appellant’s voice, established probable cause for the warrant to issue; therefore, the blurted out statements made by the appellant after the lawful arrest were properly admitted.

Judgments affirmed.

Costs to be paid by appellant.

      . The testimony was inconsistent as to the exact number chosen.

      . Testimony established that the victim was a musician who had studied music and voice, and had taken several courses in voice in college.

      . The state has conceded that the evidence admitted would constitute “contents” within the meaning of Section 10-401 (7) of the Act. Therefore, we will not consider that issue.

      . See, Gilbert, A Diagnosis, Dissection, and Prognosis of Maryland's New Wiretap and Electronic Surveillance Law, 8 U.Balt.L.Rev. 183,192-193 (1979).


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    BRUCE LEE TANN v. STATE OF MARYLAND
    [No. 14,
    September Term, 1979.]

      Decided October 11, 1979.

    The cause was submitted on briefs to Morton, Thompson and Moore, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Michael R. Malloy, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Kathleen M. Sweeney, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Gary Bernstein, Assistant State’s Attorney for Baltimore City, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Bruce Lee Tann, the appellant, was convicted of transporting a handgun in violation of Md. Code, Ann., Art. 27, § 36B by the Criminal Court of Baltimore, Judge Shirley B. Jones presiding without a jury. A sentence of three years was imposed. In his appeal appellant presents the following questions:

“1. Did the administrative judge abuse his discretion in declining to grant a postponement requested by appellant?
“2. Did the trial judge abuse her discretion in failing to grant a new trial?
“3. Did appellant’s conviction violate due process because it was based on an unconstitutional ‘rebuttable presumption’ set forth in Art. 27, § 36B (b)?
“4. Did the trial court err by considering at sentencing a crime for which appellant was neither charged nor convicted?
“5. Were the handguns improperly admitted into evidence because the police did not have a reasonable basis for an investigatory stop?”

On February 1,1978, at about 2:30 a.m. Officer Cole of the Baltimore City Police saw a car circle the block on which an all night carry out shop was located. Within the next hour the car passed the carry out shop three times. When the car stopped in a nearby parking lot Cole requested reinforcements who came and blocked the car. At trial, Cole testified that when he asked the men to step out of the car he saw the appellant, who was seated in the back seat, drop a handgun to the floor of the car. A second gun was found on the floor on the passenger side of the front seat of the car. Both guns were loaded. Warren Nelson was the driver of the car and William McCoy was a passenger in the front seat. The three co-defendants’ trial was set for June 28, 1978, but before that date, McCoy escaped from the City Jail and neither his co-defendants nor the State knew where he was on the day of the trial. The State agreed to a postponement requested by defense counsel. A few days before November 2, 1978, when the case was rescheduled for trial, the State informed appellant’s counsel that McCoy was in the hands of federal authorities in North Carolina. At trial the State objected to another postponement and the administrative judge denied appellant’s request for postponement.

Appellant and Nelson testified that the three men had gone to pick up a friend of McCoy’s who would be getting off the bus near the carry out shop. Appellant testified, denying that the car circled the block on which the carry out shop was located and denying he was in possession of a gun.

The first two issues on appeal are both related to the absence of McCoy as a witness. Appellant argues that the administrative judge abused his discretion in declining to grant a postponement in order to obtain the presence of McCoy and that the trial judge abused her discretion by failing to grant a new trial because of the administrative judge’s error in denying the postponement. In the absence of a record as to what transpired before the administrative judge there is nothing to review. See Lang v. Catterton, 267 Md. 268, 274, 297 A.2d 735, 739 (1972) and Casson v. Joyce, 28 Md. App. 634, 638, 346 A.2d 683 (1975). We will, however, review the action of the trial judge in denying the motion for a new trial, but it should be noted that the denial of a motion for a new trial is almost never reversed on appeal. Crawford v. State, 37 Md. App. 1, 375 A.2d 240 (1977), aff'd, 282 Md. 210, 383 A.2d 1097 (1978). In making the ruling in the present case the judge said:

“He [the missing witness] was on escape status and then finally he was picked up in another state. So, the matter was held over until November the 2nd, which was, I think, a fair amount of time to try to have some communication with this missing witness, and indeed the defendant, even though he has known where this witness is now for over a month or six weeks, there has still been no communication with him. What I’m saying is that there is no documentation and indeed no proffer that even if this defendant, this witness, Mr. McCoy, appeared, that he would incriminate himself and lay himself wide open to conviction in favor of absolving this defendant.
“In the absence of such a proffer or any information whatever to document that theory, I am not prepared to say that the trial should have been delayed and that a new trial should be granted, and on that account, I am going to deny the new trial motion because under all of the circumstances, I don’t think that Mr. Tann has been deprived of a witness material to his case, a witness who would have come in and testified. There’s simply no showing that McCoy would have done so.”

We see no abuse of discretion. Although we have found no Maryland case in point, cases from other jurisdictions have held that the trial judge did not abuse his discretion by not granting a postponement when the absent witness was a co-defendant. In Funderburk v. State, 219 Miss. 596, 69 So.2d 496 (1954) the defendant asked for a continuance because of the absence of a witness who was a co-defendant. In that case, the co-defendant was also a fugitive from justice. The court reasoned that the continuance was properly refused because the absent witness, as a co-defendant, could not be compelled to testify.

In State v. Cain, 307 So.2d 621 (La. 1975) the court held that the denial of a postponement was proper because the absent witness, also a fugitive from justice, was a co-defendant. The court stated that nothing in the record indicated that either of the co-defendants would have testified that the contraband belonged to them, or that either would waive his privilege against self-incrimination. Thus, the trial court correctly denied the postponement.

In United States v. Cawley, 481 F.2d 702 (5th Cir. 1973), the appellants claimed error in the denial of a motion for a continuance to obtain two witnesses. The court stated that there was a possibility that the two witnesses would not fully exonerate the appellants. The witnesses were co-defendants and one was a fugitive from justice. The court again noted that there was no evidence that the co-defendants would have testified to the incriminating circumstances. Assuming that their production at trial was possible, their willingness to testify was unascertainable. Thus, the court found that the denial of the continuance was proper. In United States v. Brandenfels, 522 F.2d 1259 (9th Cir.), cert. denied, 423 U.S. 1033, 96 S.Ct. 564, 46 L.Ed.2d 406 (1975), the court also noted that where there are no assurances that the witnesses would waive fifth amendment privilege to testify against himself, the denial of a postponement is proper.

In this case we hold that where the absent witness is also a co-defendant and there is no showing that he will waive his privilege against self-incrimination and exonerate the appellant, the trial judge may deny the postponement of a trial.

Appellant's third argument is that the statute under which appellant was convicted violates due process because it was based on unconstitutional rebuttable presumption. The appellant did not raise this issue at trial and is thus precluded from asserting it on appeal. Md. Rule 1085, Hall v. State, 22 Md. App. 240, 246, 323 A.2d 435 (1974).

Appellant’s fourth contention is that the trial court erred by considering at sentencing a crime for which appellant was neither charged nor convicted. At sentencing the judge stated:

“They are riding around the streets of Baltimore City, and they were kept under surveillance for over an hour by a police officer who watched their activities going by this place up on Charles Street, which was about the only business establishment open at the time. It was early in the morning.Through what I consider to be some excellent police work, the long and short of it is that these two people were in this vehicle, and Mr. Nelson was driving it, in which there were fully loaded handguns. One was loaded, not only loaded, but cocked.
“Is this what law abiding citizens do in the early morning hours of the morning? Prowl around our city streets with fully loaded handguns? The question was asked who would profit if these two defendants were incarcerated. Well, I might answer maybe rhetorically that maybe the honest citizen who was trying to make an honest living might possibly profit if they were incarcerated because he won’t then end up on the other end of this handgun staring him in the face.”

Appellant argues that the judge improperly concluded the appellant and his companions were contemplating armed robbery. The testimony of Officer Cole seems to us to support a conclusion that appellant and his companions were casing the carry out shop. It is a fair inference that but for the excellent police work the fully loaded handguns would have been used for a robbery. We think the sentence was influenced by the evidence before the court and not by improper considerations. See Henry v. State, 273 Md. 131, 328 A.2d 293 (1974).

Finally, appellant argues that the officer’s stop was an unconstitutional random stop and hence the trial court should have excluded the handguns and the officer’s testimony concerning the seizure. Again, this contention was not raised at trial and is not properly before this Court.

Judgment affirmed.

Appellant to pay the costs.

      . Art. 27, § 36B states in part:
      “(b) Unlawful wearing, carrying, or transporting of handguns. — Any person who shall wear, carry, or transport any handgun, whether concealed or open, upon or about his person, and any person who shall wear, carry or knowingly transport any handgun, whether concealed or open, in any vehicle traveling upon the public roads, highway, waterways, or airways or upon roads or parking lots generally used by the public in this State shall be guilty of a misdemeanor; and it shall be a rebuttable presumption that the person is knowingly transporting the handgun;”


author: Lowe, J.,

text:
    BEN SCHUSTER, etc. et al. v. WHITE COFFEE POT FAMILY INNS, INC.
    [No. 15,
    September Term, 1979.]

      Decided October 11, 1979.

    The cause was argued before Lowe, Mason and Couch, JJ.

      Glenn E. Bushel for appellants.

      Neil Tabor, with whom was S. Leonard Rottman on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Although appellants tend to obfuscate the issue with unwarranted complexities, the issue to be decided is simple. It is whether a shopping center landlord, who has granted to a restaurant tenant during its term,

“... the right of non-exclusive use, in common with others, of all automobile parking areas on land owned by Landlord within the Center...”

can eliminate part of that parking area by constructing thereon a fast food restaurant upon the justification that the landlord retained in the same lease

“... the right ... from time to time to change the area, location and arrangement of parking areas and other common facilities; ... and to do and perform such other acts in and to said areas and improvements as, in the use of good business judgment, the Landlord shall determine to be advisable with a view to the improvements of the convenience and use thereof by tenants and customers at the Center.”

The trial judge found that they could not and we agree.

Appellants pose two questions of such length as to comprise a summary of all their arguments, and it is clear that both questions and arguments are predicated upon an erroneous premise, i.e., that appellee had sought and the court granted an “implied” negative easement. Appellee sought throughout, and the trial judge found, that the lease created an express easement which the landlord could not diminish by encroachment.

The ellipticized excerpts of the allegedly contrasting paragraphs of the lease used by counsel in the briefs, and as they were set forth in the stipulated facts, provided a distorted view indicating superficial ambiguity. It is only such ambiguity which can justify the application of rules of construction. Where a contract is plain and unambiguous, there is no room for construction, Slice v. Carozza Prop., Inc., 215 Md. 357 (1958); DWS Holdings, Inc. v. Hyde Park Assoc., 33 Md. App. 667 (1976), since the parties are presumed to have intended what they expressed. Layman v. Layman, 282 Md. 92 (1978). The lease is open to construction when, and only when, it is reasonably or fairly susceptible of different constructions. Sands v. Sands, 252 Md. 137 (1969); Burbridge v. Howard University, 305 A.2d 245 (D.C. App. 1973), quoting 17A C.J.S. Contracts § 294 at pp. 34-35.

When the two clauses in controversy are set forth in full and read together, clearly no ambiguity exists. Appellants, who are not the original landlords, but stand in their shoes, obviously construed the provisions in the same manner as appellee does here, i.e., that they had no right to construct buildings on the parking lot. In July of 1977, they circulated among all the tenants a proposed lease amendment giving them the right to “reduce [parking areas] by erecting thereon store buildings or other structures or improvements of any kind____” This was done during a pending zoning change to permit a previously precluded drive-in restaurant in the shopping center. That amendment having failed, appellants now contend that the lease is not only ambiguous, but implicitly provides the right to so construct buildings on the parking lot. We cannot overlook that construction which appellants placed upon their contract by their own acts and conduct. Lumber Co. v. Bldg. & Savings Assn., 176 Md. 403(1939).

The two paragraphs claimed to be in conflict read, in full, as follows:

“(17) Landlord grants to Tenant during the term the right of non-exclusive use, in common with others, of all automobile parking areas on land owned by Landlord within the Center for the accommodation and piarking of passenger automobiles of customers of the Tenant. Landlord reserves, however, the right to rent for its own account any parking areas or spaces constructed by it as garage, roof or underground parking within or adjacent to the Center. Tenant agrees that it will cause its officers, agents and employees to park their automobiles only in such areas (if any) as Landlord may from time to time designate as employee parking areas, and that it will, on landlord’s request, furnish to Landlord license plate numbers for any automobiles of its employees.
(18) All parking areas and facilities furnished by Landlord in or near the Center, including the truck way or ways, pedestrian sidewalks, landscaped areas, and other areas and improvements provided by Landlord for the general use, in common, of customers at the Center, shall at all times be subject to the exclusive control and management of Landlord, and Landlord shall have the right from time to time to establish, modify and enforce reasonable rules and regulations with respect to all facilities and areas mentioned in this section. Landlord shall have the right to construct, maintain and operate lighting facilities on all said areas and improvements; to police the same; from time to time to change the area, location and arrangement of parking areas and other common facilities; to restrict parking by tenants, their officers, agents and employees to employee parking areas (if any); to construct surface, subterranean or elevated parking areas and facilities; to establish and from time to time change the level of parking surfaces; to enforce parking charges (by operation of meters or otherwise) with appropriate provisions for free parking ticket validating by tenants at locations now provided as parking areas; to close all or any portion of said areas or facilities to such extent as may, in the opinion of Landlord’s counsel, be legally sufficient to prevent a dedication thereof or the accrual of any rights to any person or to the public therein; to close temporarily all or any portion of the parking areas or facilities; to discourage non-customer parking; and to do and perform such other acts in and to said areas and improvements as, in the use of good business judgment, the Landlord shall determine to be advisable with a view to the improvement of the convenience and use thereof by tenants and customers at the Center.”

When read together as we are admonished to do, Delmarva Drill Co. v. Tuckahoe, 268 Md. 417 (1973), and giving effect to all of the. contractual provisions, Hart v. Hart, 165 Md. 77 (1933), we find no conflicting provisions which may not be reconciled and accepted as binding on the parties. Therefore, no one of them ought to be rejected. Lumber Co. v. Bldg. & Savings Assn., supra.

It would obviously be contradictory for a lease to give the right of nonexclusive use of “all” the parking area “owned” by the landlord in the Center “during the term” of the lease, then permit the landlord to permanently deprive the tenant of all or part of it at thé whim of the landlord in the very next paragraph. That would be an absurd result which we must reject if a reconcilable construction is available. Canaras v. Lift Truck Services, 272 Md. 337 (1974). We may not resort to that rule of construction if the contract, by its language, is susceptible of only one meaning (even if absurd), Ensor v. Wehland, Executor, 243 Md. 485 (1966), but the paragraphs here are not only interpretively limited but reasonably reconcilable as well.

Paragraph 17 grants an easement for a term — not a license subject to revocation. Paragraph 18 provides the responsibilities, limitations, controls and management reserved, not only to the parking areas, but all other

“facilities furnished by Landlord, ... including the truck way or ways, pedestrian sidewalks, landscaped areas, and other areas and improvements provided by Landlord for the general use----”

This reserved management role does not express or imply authority permanently to deprive the dominant estates of their rights. To the contrary, the provision goes on to say in detail the limitations of “temporarily” closing any of these areas, or to close them only

“to such extent as may, ... be legally sufficient to prevent a dedication----”

The distinct meaning of the limitations thus placed upon the right to close the parking areas must be given effect, Hart, supra, and not simply rejected. Lumber Co., supra.

It should be noted that appellants alternatively resort to a "de minimus non curat lex” argument by pointing out that while the landlord-owned parking area is only 475 spaces, an exchange agreement with the neighboring Hecht Company provided an additional 1030 spaces; thus if, as testified, the proposed drive-in restaurant consumed only 36 spaces, the reduced parking factor would be .0196.

That argument cannot be entertained, however, since the easement was granted to all land “owned” by the landlord. Assuming the reservation to “change” the parking areas allowed substitutions, such change was obviously not contemplated to be beyond those areas “owned” by landlord “within the Center,” at the time of the leasing. It obviously did not consider an exchange-use agreement, not a part of the lease at the time. We further note there there is authority elsewhere indicating that a “de minimus” argument may not be available in such as the circumstances here, even allowing for the additional spaces. Walgreen Co. v. American Nat. B. & T. Co. of Chicago, 281 N.E.2d 462 (Ill. 1972).

The contract is clear and the easement for a parking area, absent a specific right reserved to diminish it or construct permanent improvements upon it, will be enforced. See Md. Trust Co. v. Tulip Realty, 220 Md. 399 (1959); see also Annot., 56 A.L.R.3d 596 Shopping Center Lease — Parking Area Use.

Finally, it is not necessary to decide the evidentiary question raised because we hold that the Circuit Court of Baltimore City (from whence the case has come) should have decided it as a matter of law, there being no ambiguity in the contract. The questioned testimony of other tenants concerning actual use by the public of the parking area was unnecessary.

Judgment affirmed.

Costs to be paid by appellants.

APPENDIX

'•STIPULATION OF FACTS

White Coffee Pot Family Inns, Inc., Plaintiff, and Ben Schuster, David Diamond, Paul Diamond and Samuel Gloger, Co-Partners t/a The Northwood Company, certain of the Defendants herein, by their respective attorneys, hereby stipulate and agree to the following facts.

1. The Northwood Shopping Center situate at Loch Raven Boulevard and Argonne Drive, Baltimore City, Maryland, is a large shopping center containing approximately 93,600 square feet of improvements, not including basements nor the second floor office area. Neither does that figure include the Hecht Company, which owns its own store in the Shopping Center. There are approximately 475 parking spaces contained in that area of the parking lot owned by the Landlord; the Hecht Company owns property which contains space for 1,030 additional vehicles. However, there is no visible boundary between the parking area owned by the Hecht Company and the remainder of the parking area, and by a recorded agreement the parking areas may be used interchangeably.

On February 1, 1967 White Coffee Pot, Jr., Inc., entered into a Lease (the ‘Lease’) with The Northwood Corporation, a body corporate. A copy of said Lease is attached hereto as Exhibit A. The Lease is for a term of fifteen years terminating February 28,1982. The Lease provides that The Northwood Corporation, as Landlord, demises and leases to White Coffee Pot, Jr., Inc., as Tenant, a store containing dimensions of 17-%' x 120', and designated as No. 1518 Havenwood Road, for use as a restaurant, together with:

‘... the right of non-exclusive use, in common with all others, of all automobile parking areas on land owned by Landlord within the Center for the accommodation and parking of passenger automobiles of customers of Tenant.’ (Exhibit A, 1117.)

The Lease provides further that:

‘All parking areas and facilities furnished by Landlord in or near the Center ... shall at all times be subject to the exclusive control and management of Landlord____Landlord shall have the right to ... from time to time change the area, location and arrangement of parking areas and other common facilities.’ (Exhibit A, 1118.)

Both of the quoted Lease provisions are contained in the printed portion of the Lease, which printed Lease form was submitted to Plaintiff by The Northwood Corporation, predecessor in title to the present Landlord.

3. By Articles of Merger dated December 31, 1970 and recorded among the records of the Maryland State Department of Assessments and Taxation, White Coffee Pot, Jr., Inc. merged into the Plaintiff herein (White Coffee Pot Family Inns, Inc.). Plaintiff as the surviving corporation under said merger acquired all of the rights and benefits of White Coffee Pot, Jr., as Tenant under the Lease.

4. By Deed dated September 17,1975, and recorded among the Land Records of Baltimore City at Liber 3271, folio 874, The Northwood Corporation conveyed the entire Shopping Center (including the premises demised to Plaintiff’s predecessor in title, White Coffee Pot, Jr., Inc.) to the individual Defendants. Said Defendants now operate the Shopping Center as Co-Partners t/a The Northwood Company (‘Northwood’).

5. McDonald’s Corporation (‘McDonald’s’), one of the Defendants herein, entered into a Ground Lease dated February 2, 1976 with the Partnership pursuant to which McDonald’s intended to construct and operate a restaurant and carry-out store on a portion of the present parking lot for the Northwood Shopping Center. A copy of the Ground Lease is attached hereto as Exhibit B. The McDonald’s Lease is for a term of twenty years, together with certain renewal options. The term of the Lease was to commence upon its execution, but the Lease was subject to McDonald’s obtaining the passage of a special ordinance through the Baltimore City Council. (Exhibit B, 113; Exhibit B, Addendum, ¶3.) The demised premises consist of not less than 62,000 square feet, the location of which is shown on a plat attached hereto as Exhibit C.

6. Pursuant to a certain Rezoning Ordinance No. 501 enacted by the Mayor and City Council of Baltimore on or about September 1, 1977, a Business Plan Development was established for the Northwood Shopping Center, and Section 5 of the Ordinance authorized the construction of a McDonald’s Restaurant and carry-out on a portion of the parking area within the shopping area belonging to Northwood. A copy of the Ordinance is attached hereto as Exhibit D.

7. On or about July 1, 1977 Isaac M. Neuberger, attorney for Northwood, sent a letter to each of the tenants in the Shopping Center, in which he described, inter alia, certain landscaping and sign changes which had been proposed for the Shopping Center. A copy of the letter from Isaac M. Neuberger to the tenants of the Shopping Center is attached hereto as Exhibit E. Enclosed with the letter was a ‘Lease Amendment,’ prepared on behalf of Northwood, which it sought to have executed by each of the tenants. A copy of the proposed ‘Lease Amendment’ is attached hereto as Exhibit F. White Coffee Pot did not execute the Lease Amendment, and has not executed the proffered Lease Amendment.

8. McDonald’s has elected to disaffirm its Lease with Northwood; however, Northwood has a written agreement with B K Realty Company, an Ohio Limited Partnership, pursuant to which Northwood and B K Realty Company have agreed that a Burger King will be constructed and operated on the parking lot area owned by Northwood if this law suit is resolved in favor of Northwood.

9. Since White Coffee Pot commenced its tenancy in February, 1967, no building permits have been issued for the construction of any buildings upon the Northwood Shopping Center parking lot or common areas, and no construction of any such improvements (including a McDonald’s or any other drive-in restaurant) within the Shopping Center parking lot or other common areas has, in fact, commenced.

The parties hereto, by their respective attorneys, hereby stipulate and agree that this Stipulation of Facts shall be filed in the within proceedings. The parties further stipulate and agree that the within Stipulation of Facts shall not preclude either party from presenting additional evidence at the hearing.

s/ Neil Tabor

Neil Tabor

s/ S. Leonard Rottman

S. Leonard Rottman

Attorneys for Plaintiff,

White Coffee Pot Family Inns, Inc.

s/ Glenn E. Bushel

Glenn E. Bushel

Attorney for Defendants,

Schuster, et al, t/a

The Northwood Company”

      . We append that stipulation for factual background.


author: Wilner, J.,

text:
    JOHN D. BILNEY et al. v. THE EVENING STAR NEWSPAPER COMPANY et al.
    [No. 21,
    September Term, 1979.]

      Decided October 15, 1979.

      The cause was argued before Thompson, Wilner and Weant, JJ.

      Clarence W. Sharp and Walter H. Madden, with whom were Thomas D. Murphy and Madden & Murphy on the brief, for appellants.

      Stuart F. Pierson, with whom were James A. McGuire and Verner, Liipfert, Bernhard & McPherson on the brief, for appellees The Evening Star Newspaper Company, James Bellows, Richard Heller, Eric Blum and Theodore Beitchman. Edward J. Smith, Jr., with whom were David H. Martin and Santarelli & Gimer on the brief, for appellees Mark Kram and Richard Burke. Submitted on brief by Carl E. Tuerk, Jr., and Cooper, Beckman & Tuerk for other appellee.
   Wilner, J.,

delivered the opinion of the Court.

Appellants are six young men who, in 1977, were undergraduate students at the University of Maryland (College Park Campus) and members of the University’s varsity basketball team. Feeling aggrieved by articles appearing in the November 1, 1977, editions of the Washington Star and the student publication, the Diamondhack, they sued the publishers of those newspapers and a number of individuals who allegedly participated in the writing and editing of the articles for invasion of privacy and intentional infliction of mental distress. The Circuit Court for Prince George’s County entered summary judgment in favor of all defendants save one, which it dismissed on motion raising preliminary objection; and this appeal followed.

A few basic facts will put the issues raised here in the proper perspective. College basketball, particularly at the University of Maryland, is a “big time” sport. It generates a great deal of interest and excitement, not only among the students but among sports enthusiasts in most of the Baltimore-Washington megalopolis and, indeed, because of the team’s frequent national ranking, among sports-minded people throughout the country. It also generates a lot of money — legally for the University and the Atlantic Coast Conference, of which the University is a member, and illicitly for those who wager on college sporting events. Newspapers in the area follow the team’s prospects and achievements with great interest and regularity.

The interest in the team, of course, spills over to the individual players. Their recruitment by the University and their individual performances as team members are given wide publicity, much of which is initiated or controlled by the University and its officials. Appellants, in their brief, concede that, by virtue of their status as members of the basketball team, they were “public figures” — that, as team members they were the subject and object of widespread public interest.

Pursuant to certain regulations adopted by the National Collegiate Athletic Association and the University of Maryland, students at the University who have completed 45 credits must maintain a grade-point average of 1.95 or above (essentially equivalent to a C-) and must earn at least 24 “quality points” per semester. Failure to meet these standards will cause a student to be placed on academic probation; and, of central importance in this case, if a student is on academic probation in two consecutive semesters, he is subject to dismissal from the University. If dismissed, of course, he becomes ineligible to play on the school basketball team.

Each of these appellants was the recipient and beneficiary of an athletic scholarship, awarded by the University, that defrayed all or a major part of his college expenses. Academic success of a University athlete is encouraged and given wide publicity. The University publicly posts a list of all of its athletes earning a grade point average of 3.0 or better, and it gives special publicity to those who achieve more notable success.

Thus it is that the academic prowess of these appellants, and their colleagues, was of significant public interest and concern not only in terms of the University’s policy of encouraging scholastic success, but also from the perspective of their continuing eligibility to play varsity basketball.

On the morning of November 1,1977, the Washington Post published an article quoting the University’s basketball coach, “Lefty” Driesell, as admitting that four of the team’s eight returning players were on academic probation for failing to meet grade requirements in the previous semester, and that two others had recently been taken off such probation. Although not directly identifying the four players, the article proceeded to permit their easy identification by a process of elimination. It named the eight veterans, stated that two — appellants Boston and Davis — had recently been taken off probation, and noted that two others, not involved in this case but who were named, were on the Atlantic Coast Conference honor roll. That, of course, left the four remaining appellants — Bilney, Bryant, Gibson, and Hunter — as those who were currently on probation. No action has been filed with respect to this article.

Later that morning, the Star printed two articles concerning appellants Bilney, Bryant, Gibson, and Hunter. Prominently displayed on page one were photographs of the four players, under which appeared their names and the statement: “The University of Maryland’s basketball program is in danger of collapse because of poor schoolwork. The Star has learned that four of eight returning players— Larry Gibson, Jo Jo Hunter, Billy Bryant and John Bilney — are on academic probation and in danger of flunking.” The full story appeared on the first page of the sports section. Under the by-line of appellee Dick Heller, identified as a Star “Staff Writer”, the article recited that the Star had learned “from university records” that the four named players were “on academic probation and in danger of flunking” at the end of the fall semester. It went on to quote comments from Coach Driesell, Chancellor Gluckstern, Athletic Director Kehoe, other University officials and faculty members, and former University basketball stars, all dealing either with appellants’ particular dilemma or the general problem of satisfying minimum academic requirements. At the end of the article, it was noted that appellees Kram, Burke, and Blum “also contributed to this report.” The second article in the Star was a column also under Heller’s by-line that dealt primarily with Coach Driesell.

The third newspaper to comment on this matter was the Diamondback. On that same day — November 1 — in an article written by appellees Burke and Kram, it was again reported that Bilney, Bryant, Gibson, and Hunter were on probation and “in danger of being academically dismissed.” More specifically, this article stated that “[according to records, Bilney finished last semester with a 1.5 grade point average, Bryant with a 1.24, Gibson with a 1.88 and Hunter with a 1.1”. It said also that appellant Boston had been “academically dismissed” the previous spring, but had been reinstated, and that appellant Davis, while having a 2.2 grade point average, had been temporarily placed on probation for a quality point deficiency which was subsequently corrected.

Appellants named as defendants in their action the publishers of the Star and the Diamondback (appellees Evening Star Newspaper Company and Maryland Media, Inc.); the editor and sports editor of the Star (appellees Bellows and Beitchman); Richard Heller (the Star staff reporter); Eric Blum, a “stringer” for the Star; and the two authors of the Diamondback article who also were credited with contributing to the Star story (appellees Burke and Kram). The gravamen of their complaint, both in terms of the invasion of privacy and intentional infliction of mental distress counts, was that appellees wilfully, wrongfully, and maliciously invaded appellants’ confidential University records and published private and privileged facts about their private lives. Both torts rested upon the unlawful obtention of confidential school records and the unlawful publication of such records.

Maryland Media, Inc. sought and obtained preliminary dismissal under Maryland Rule 323 on the basis of eleemosynary immunity. For reasons shortly to be explained, it is not necessary for this Court to consider the propriety of that decision, although appellants have raised it as an issue in their appeal. After extensive discovery and the filing of voluminous affidavits, deposition transcripts, and other assorted documents, all other parties moved for summary judgment. Following a recorded oral argument, the court, as noted, denied the motion filed by appellants and granted those filed by appellees.

Appellants contend that this action was wrong for four reasons. As to appellees other than Maryland Media, Inc., they assert that summary judgment was inappropriate because (1) “there are genuine disputes as to material facts under [the] pleadings, affidavits and depositions”, (2) the record did not support the court’s conclusion “that appellees did not intentionally invade a private area of appellants’ lives, which intrusion was unreasonably offensive”, and (3) appellees had no right to publicize appellants’ academic standing, even if appellants were public figures. The fourth issue is that of Maryland Media’s charitable immunity.

Í1) Genuine Dispute of Material Fact

As noted, both appellants (collectively) and appellees moved for summary judgment, all asserting in support of their respective motions that there was no genuine dispute of material fact. Both sides filed answers in opposition to the other’s motion, but neither answer asserted, as a defense to the opponents’ motion, that there was a dispute of fact sufficient to require a trial of the issue.

At oral argument on the cross motions, appellants’ counsel reiterated his contention that there was no genuine dispute as to any material fact and that no additional evidence was necessary, or would be forthcoming, with respect to the pending motions. It was agreed that the case was ripe for summary judgment, the only dispute being as to which side should be favored with the judgment.

Notwithstanding these assertions and concessions in the lower court, appellants claim here that there was indeed a genuine dispute of fact sufficient to make summary judgment inappropriate. The dispute, they contend, is not with respect to any underlying or basic facts but rather in the inferences to be drawn therefrom. This, they say, is apparent from the memorandum opinion filed by the circuit court.

The uncontradicted evidence before the court, in the form of depositions and affidavits, was that (1) the poor scholastic showing on the part of a number of the varsity basketball squad members had been the subject of wide rumor around the Campus for some time; (2) Burke and Kram had heard these rumors and had reported them to the Star; (3) the Star indicated interest in the story if there was any foundation to it, and asked the two student reporters to check it out; (4) the ultimate information with respect to appellants’ scholastic status was gratuitously given to Burke and Kram by a volunteer source whose identity, under the aegis of the Maryland Shield Law, Courts Article, § 9-112, they declined to reveal; and (5) Burke and Kram passed this information along to the Star and used it in their story in theDiamondback. Each of the appellees specifically denied under oath that he or it invaded the University records in order to obtain this information or solicited, employed or paid anyone else to do so. No direct evidence to the contrary — not even a conclusory averment under oath — was offered by appellants. From this uncontradicted evidence, therefore, it would seem clear that the information, though perhaps emanating ultimately from confidential University records, was not obtained by any personal act of invasion or intrusion on the part of any of these appellees.

The countervailing inference sought to be raised by appellants emanates from (1) the assertion in the Star article that the information was learned “from University records” and (2) the fact that Burke, Kram and Blum were paid a standard fee of $125 for their contribution to the story. These facts, they contend, permit an inference that the Star, through its employees, either invaded the University records directly or paid Burke, Kram, or Blum to do so on its behalf.

The short answer to this contention is that it was not preserved for appellate review. Although appellants argued the existence of this inference below, their argument was solely in the context of their entitlement to summary judgment on the basis that there was no genuine dispute of material fact. At no point, either in their pleadings or in their oral or written argument to the circuit court, did they suggest that summary judgment for appellees would be inappropriate because of a dispute of fact generated by this proffered inference. It was therefore an issue that was not presented to or decided by the lower court, and we shall not consider it for the first time on appeal. Maryland Rule 1085.

We hasten to say that our conclusion in this regard is not based solely upon the fact that appellants filed their own motion for summary judgment. We need not determine here whether that alone would suffice to constitute a waiver of a subsequent argument that there existed a genuine dispute of material fact. Compare Fenwick Motor Co. v. Fenwick; 258 Md. 134,138 (1970). As we have pointed out, in addition to the filing of such a motion and the consequent assertion to the lower court that there was no such dispute, appellants failed to raise this in opposition to appellees’ cross motions and never presented the question in any way to the lower court. It is this combination of affirmative assertion with respect to their own motion and silence with respect to appellees’ motion that has served to withdraw the question from appellate review.

(2) Evidentiary Sufficiency: Conclusion That Appellees Did Not Intentionally Invade Appellants’ Privacy In An~ Unreasonably Offensive Manner

In the section of its Memorandum Opinion dealing with the intrusion upon seclusion, the court stated that there was no showing that appellees “inspected confidential university files or solicited a third party to obtain the information”. It concluded that “an unnamed source gratuitously” offered to secure and ultimately furnished the information to Burke and Kram, and held, as a consequence, that appellees “did not personally invade [appellants’] record nor was the manner in which they received the information offensive or objectionable to a reasonable man.”

Appellants’ attack on this conclusion is a multi-faceted one.

First, in a restatement of the argument discussed in part (1) of this Opinion, they proffer again the inferences sought to be drawn from the one phrase in the Star article referring to University records and the fact that Blum, Burke, and Kram were each paid $125. As presented here, however, we are not considering whether there was a dispute of fact, but only whether the evidence sufficed to support the findings made by the court that were contrary to those that appellants urge would flow from this inference. We have, in part (1), summarized the evidence offered by appellees as to the derivation of the two articles in question here; there is no need to repeat or expand upon it. Clearly the affidavits and depositions filed by appellees more than sufficed to support the findings reached by the court. Indeed, the evidence so offered was, save for the strained inference, uncontradicted, and could lead to no other findings.

Mixed in with their charge of evidentiary insufficiency is appellants’ assertion that, having refused to reveal the identity of the initial source of the information, appellees may not properly rely upon the defense that this source was a voluntary and gratuitous one. No authority is cited for this proposition, and we know of none in support of it. For one thing, such an assertion fails to account for the important distinction among the various appellees. The evidence was, as noted, uncontradicted, that only Burke and Kram had any contact with this unnamed informant or knew who he or she was. Neither the Star nor its employees raised the State “shield” law in an effort to block appellants’ discovery efforts; if their uncontradicted testimony is believed, they could not disclose the source because they didn’t know the source. As to these appellees, therefore, the argument is without a factual predicate.

As applied to Burke and Kram, the argument raises another issue. During the pendency of these proceedings in the circuit court, Courts article, § 9-112 provided that a person connected with or employed on a newspaper “may not be compelled to disclose, in any legal proceeding ... the source of any news or information procured or obtained by

him for and published in the newspaper” with which he is connected. In Lightman v. State, 15 Md. App. 713, 725 affd. 266 Md. 550 (1972), this Court (and through its adoption of our Opinion, the Court of Appeals) construed this statute as meaning that “it is for the newsman to determine whether he will disclose the ‘source’ of his news or information, and such disclosure cannot be compelled by requiring that he answer questions aimed, directly or indirectly, toward ascertaining the source’s identity.” In other words, the statute means what it plainly says.

Some courts, interpreting generally similar statutes, have drawn a distinction between criminal and civil cases, and have construed the privilege much more narrowly in the latter than in the former. See, in general, Annot., 7 A.L.R.3d 591, 598. Particularly in libel cases, a few courts have concluded that where a reporter testifies about some of his sources, or refers to his unnamed source as a “reliable” one, he has waived the statutory privilege. See, for example, Brogan v. Passaic Daily News, 123 A.2d 473 (N.J., 1956); Beecroft v. Point Pleasant Printing & Publishing Co., 197 A.2d 416 (N.J., 1964).

It does not appear that the appellate courts of Maryland have yet considered these questions — whether the statute provides less protection to a reporter in a civil case, whether his characterization of an unnamed source as gratuitous or voluntary suffices to operate as a waiver and thereby withdraw the privilege entirely. We have them here, however, and we answer both in the negative.

The Maryland statute makes no distinction, either explicitly or implicitly, between civil and criminal actions; it applies to “any legal proceeding”. Whatever arguments on the plane of public policy may be offered in support of a distinction — one way or the other — that policy has been clearly set and stated by the General Assembly; and we are not at liberty to create, on our own, a distinction for which there is no underlying basis in the law.

Neither do we so readily accept the theory of waiver as applied by some of our sister courts. Webster, Black, and the courts have defined “waiver” in many different ways, but the common denominator of all the definitions is the relinquishment of a right, either directly or by acting in a manner that is inconsistent with the right or one’s intention to rely on it. In this sense, a reporter may, of course, waive the statutory privilege — perhaps unwittingly — in a variety of ways. But mere characterization of his source as gratuitous or voluntary is not one of them. Such a description does not suggest the source’s identity (at least not in this case); nor is it inconsistent with a desire and intention not to reveal that identity.

The effect of endorsing appellants’ argument as to Burke and Kram, on whatever theory, would be to penalize the use of the “shield” law and thus to negate the very protection sought to be conferred by the General Assembly. This, of course, we must decline to do.

Finally, appellants contend that “the bald allegation” that the ultimate source of the information was a gratuitous volunteer cannot stand as the basis for summary judgment without “valid proof” that appellees actually used such source in preparing the articles. The simple answer to this is that there was such proof. Indeed, that was the principal content of the evidence given by Burke and Kram.

(3) Right to Publicize Scholastic Standing

We leave now the issues relating to the obtention of the forbidden information and consider the propriety of its publication in the context of the tort of invasion of privacy. Conceding that they were public figures — and that the information printed was true — appellants maintain that their scholastic status was a purely private matter unaffected by any public interest or concern.

That invasion of privacy would be recognized as a separate tort in Maryland and redress provided for its commission was first suggested by the Court of Appeals in Carr v. Watkins, 227 Md. 578 (1962). Although, at that time, more than 70 years had elapsed since the American nativity of the tort in the famous article by Warren and Brandéis (The Right to Privacy, 4 Harv. L. Rev. 193 (1890)) and the tort had already been recognized throughout most of the United States, there had yet to be reached any real concensus among courts and commentators as to its precise nature. The Carr Court observed only that it emanated from the right “to be let alone” and had a certain kinship with the tort of defamation. 227 Md. at 586.

In the years following Carr, however, a good bit of “fleshing out” and molding occurred, notably with the drafting and adoption of new sections 652A — 6521 of the Restatement of Torts (2d), and the tort was given a more precise and standard description. When it next dealt with the matter, in Household Fin. Corp. v. Bridge, 252 Md. 531 (1969), the Court of Appeals recognized these later developments and, in general, blessed by adoption their product. See also Hollander v. Lubow, 277 Md. 47 (1976).

Restatement (2d), § 652A describes four ways in which one may tortiously invade the privacy of another. At issue here is the third of these methods — § 652A(2)(c) — “unreasonable publicity given to the other’s private life, as stated in § 652D”. Section 652D provides:

“One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.”
(Emphasis supplied.)

Comment e to § 652D deals with “voluntary public figures”. Not all of it is relevant here, but this much, we think, is:

“One who voluntarily places himself in the public eye, by engaging in public activities, or by assuming a prominent role in institutions or activities having general economic, cultural, social or similar public interest, or by submitting himself or his work for public judgment, cannot complain when he is given publicity that he has sought, even though it may be unfavorable to him____In such a case, however, the legitimate interest of the public in the individual may extend beyond those matters which are themselves made public, and to some reasonable extent may include information as to matters that would otherwise be private. ” (Emphasis supplied.)

The concept described in the emphasized portion of comment e is touched on in greater detail in comment h. That says, in relevant part:

“Permissible publicity to information concerning either voluntary or involuntary public figures is not limited to the particular events that arouse the interest of the public. That interest, once aroused by the event, may legitimately extend, to some reasonable degree, to further information concerning the individual and to facts about him, which are not public and which, in the case of one who had not become a public figure, would be regarded as an invasion of his purely private life. ...
“The extent of the authority to make public private facts is not, however, unlimited____ In determining what is a matter of legitimate public interest, account must be taken of the customs and conventions of the community; and in the last analysis what is proper becomes a matter of the community mores. The line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern. The limitations, in other words, are those of common decency, having due regard to the freedom of the press and its reasonable leeway to choose what it will tell the public, but also due regard to the feelings of the individual and the harm that will be done to him by the exposure. Some reasonable proportion is also to be maintained between the event or activity that makes the individual a public figure and the private facts to which publicity is given.”

Our Court of Appeals summarized these principles most cogently in Beane v. McMullen, 265 Md. 585, 600 (1972) when it stated that “reasonableness under the facts presented is the determining factor.” See also Hollander, supra, 277 Md. at 60.

Appellants achieved the status of public figures solely by virtue of their membership on the University basketball team. Their possible exclusion from the team — whether for academic or any other reason — was therefore a matter of legitimate public interest. Had they quit the team or withdrawn from the University, the public would be entitled to ask and to speculate as to the reasons for such action. That the threat of exclusion was academically based does not lessen the legitimacy of the public interest. Appellants were not in the same posture as other students, whose scholastic standing, in its entirety, was purely of private concern; when their standing reached the point of affecting their eligibility to play basketball for the University, the privacy of that status became somewhat attenuated. Publication of that eligibility-threatening status was not unreasonable and did not trample upon community mores. Having sought and basked in the limelight, by virtue of their membership on the team, appellants will not be heard to complain when the light focuses on their potentially imminent withdrawal from the team. We thus concur with the circuit court that, upon the undisputed evidence in this case, the publications in question did not constitute a tortious invasion of privacy.

(4) Eleemosynary Immunity of Maryland Media. Inc.

Having concluded that, under the facts present here, neither the obtention nor the publication of the information was tortious, there would be no liability on the part of Maryland Media, Inc. to appellants. Accordingly, judgment in its favor was properly entered, and it would make no difference whether that result was required also by reason of eleemosynary immunity.

Judgments affirmed; appellants to pay the costs.

      . Quality points are the product of the number of credits earned during the semester and the grade point value applicable to those credits. Thus, a student completing 12 credits in a semester must earn a “C” average, or a numerical average of 2.0 on a 4.0 scale (A=4, B=3, C=2, D=l) in order to satisfy both requirements.

      . By Laws of Md., 1979, ch. 484, § 9-112 was amended to expand its protection to sources of information obtained forvthe purpose of publication, whether or not the information is actually published. The amendment, effective July 1,1979, does not affect the outcome of or the issues involved in this appeal.

      . Appellants’ argument as to the propriety of publishing this information is couched solely in terms of whether the publication was an invasion of their privacy. They do not discuss whether such publication also amounted to an intentional infliction of emotional distress, and neither shall we.


author: Moylan, J.,

text:
    DALE JAMES DiPASQUALE v. STATE OF MARYLAND
    [No. 34,
    September Term, 1979.]

      Decided October 15, 1979.

    The case was argued before Moylan, Melvin and Weant, JJ.

      DomenicR. lámele, with whom were Morton C. Pollack and Levy & lámele on the brief, for appellant.

      William H. Kenety, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and Stephen Schenning, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

The appellant, Dale James DiPasquale, was convicted in the Circuit Court of Baltimore County in a court trial of possession with intent to distribute PCP and possession of marijuana. Upon this appeal, he raises the single contention that the judge erroneously refused to suppress the physical evidence. Reluctantly, we must agree.

The logic which compels this result will be more apparent if we begin at the end of the search and seizure sequence and work back to the beginning. Following his street arrest at 2:50 a.m. on April 17,1978, the appellant was taken to the Essex Police Station. At the station, a routine search incident to the arrest was conducted. It produced eight small bags of PCP. If the arrest was lawful, the search incident thereto and the seizure of the PCP was reasonable. If, upon the other hand, the arrest was unlawful, the search incident thereto and the seizure of the PCP was unreasonable. “At the very threshold of search incident theory, the search must be incident not merely to an arrest but to a lawful arrest.” Dixon v. State, 23 Md. App. 19, 26, 327 A.2d 516 (1974). We must, therefore, look backward to the arrest.

The appellant had been arrested warrantlessly a few minutes earlier for the unlawful possession of marijuana. Although legitimate peripheral observations established the likelihood that the appellant was under the influence of some drug, the necessary factor and the precipitating factor in this case for the arrest for marijuana possession was the seizure from the appellant’s shirt pocket of what the officer, upon observing it out in the open, had probable cause to believe was a bag of marijuana. If the seizure of the bag was constitutional, the ensuing arrest was lawful. If the seizure of the bag was unconstitutional, the arrest must fall. The marijuana would have to be suppressed as the direct product of the unconstitutional seizure and the PCP would have to be suppressed as the tainted fruit of that “poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Everything hinges upon that initial seizure, so we turn to the consideration of it.

What immediately preceded the seizure of the bag was, according to the State’s interpretation, a mere accosting of the appellant by the police or, according to the appellant’s interpretation, a stop within the contemplation of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). It makes no difference which it was. Either would represent legitimate, reasonable police behavior. Neither would have served, upon the facts of this case, as an adequate predicate for the ensuing seizure. Even assuming a valid stop by the lights of Terry, what followed was not a frisk. The officer articulated no reasonable suspicion that the appellant was armed; the partially observed marijuana pouch was thought by the officer to be a tobacco pouch; indeed, the State did not at trial and does not now seek to justify the seizure upon a frisk rationale. “Frisk” law simply has no bearing on this case. A legitimate accosting of a citizen by a policeman or even a legitimate stopping and questioning of a citizen does not, ipso facto, confer any right to reach into a citizen’s pocket and remove something from it. That additional intrusion requires its own distinct justification.

The only arguable justification here is that the object in question was in open view. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). As the State seeks to analogize the ensuing seizure to a Plain View Doctrine seizure, as legitimately it may, the flaw in its argument is its neglect of the requirement that there be a nexus or probable cause to believe that the thing seen in plain or open view is actually evidence of crime in order to justify its warrantless seizure.

In this case, the officer, armed with the reasonable suspicion that the appellant was intoxicated by drugs, noticed a plastic baggie partially protruding from the top, zippered portion of the appellant’s jumpsuit. The officer further observed enmeshed within the folds of the baggie a few grains of what appeared to him to be cigarette tobacco. On cross-examination, the officer acknowledged that at the time he seized the baggie, he did not know nor even suspect that it contained anything other than cigarette tobacco. There is nothing in this record demonstrating that the officer here believed that the bag which he observed partially in open view was evidence of crime. This critical element of nexus or probable cause for a warrantless seizure was well articulated by Judge Levine in State v. Wilson, 279 Md. 189, 195, 367 A.2d 1223, 1227 (1977):

“[I]t was not ‘immediately apparent to the police that they [had] evidence before them.’ This element, in essence, amounts to a requirement that police have probable cause to believe the evidence is incriminating before they seize it. As the court said in United States v. Gray, supra, 484 F.2d at 356, ‘[I]t must be “immediately apparent” to the police that the object is in fact incriminating or the seizure of the object would be without probable cause and would turn the search into a general or exploratory one.’ [citations omitted]”

That the facts here might have established probable cause for an arrest of the appellant, even before the baggie was seized, and for a good search incident thereto which would have produced the baggie is beside the point. No arrest was made until after the seizure and the arrest was predicated on the observation of the thing seized.

In the alternative, that the visual, olfactory and auditory observations preceding the actual seizure might have been enough to give some other officer probable cause to believe that the partially observed baggie was, indeed, the repository of probable marijuana is also beside the point. It is necessary that such belief abide in the seizing officer. For all that the record demonstrates, there was no such belief in the officer's mind in this case.

The subjective belief in the officer’s mind is critical, for the entire thrust of the Fourth Amendment and its exclusionary rule is aimed at the reasonableness of police conduct. It is true that even a bona fide belief on the part of the policeman is never enough, standing alone, to justify a Fourth Amendment intrusion; we must still measure whether such a subjective belief was reasonable. The actual, subjective belief, however, is the indispensable starting point. Even though it is not a sufficient condition, it is a necessary condition. That condition was not here established.

The State acknowledges that it did not prove affirmatively an actual belief on the part of the officer that the partially observed baggie probably contained marijuana. It counterpunches, very tentatively, that neither did the appellant disprove such actual belief on the part of the officer. The State is absolutely correct in its observation, but the point avails it nothing. Warrantless Fourth Amendment intrusions are presumptively unreasonable, Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and the burden is allocated to the State of showing adequate justification for the exceptional departure from the Fourth Amendment norm. In this case, we simply do not know whether the officer had or did not have such a subjective, actual belief. The resolving of doubt — the breaking of the tie — goes, by definition, against the party having the burden of proof. Under these circumstances, the burden was allocated to the State and the State failed to carry its burden. Were the burden allocated in the other direction, our result would be just the opposite. It is that elementary.

This absence of demonstrated actual belief that the thing observed was probably evidence of crime is, moreover, fatal to any alternative theory of justification for the warrantless seizure according to Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973).

For guidance of the court upon retrial, we note that it would follow from all of the above that the appellant’s confession, given shortly after his unlawful arrest and given as he was confronted with the evidence unconstitutionally seized, would also have to be suppressed. There was neither attenuation of taint nor a showing of independent source and it appears clearly that the confession was the tainted fruit of the poisonous Fourth Amendment tree. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).

Judgment reversed; ease remanded for new trial; costs to be paid by Baltimore County.

      . We rigorously restrict the formal Plain View Doctrine to those warrantless seizures that take place inside a constitutionally protected area following a prior valid intrusion into that area. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Brown v. State, 15 Md. App. 584, 292 A.2d 762 (1972).

      . Let it be carefully noted that when we speak of the necessity for an actual belief by the officer himself, we are speaking not of an officer’s belief as to the legal significance of that which he observes or thinks he observes but rather of the officer’s belief as to what it is factually that he is observing. As to the distinct former situation, see United States ex rel. Senk v. Brierly, 381 F.Supp. 447 (M.D.Pa. 1974); 1 LaFave, Search and Seizure, 459-461 (1978). An officers factual interpretation is pertinent even if his legal interpretation is not.

       We are not, of course, privy to all of the evidence that the prosecutor might theoretically have in his file (although it appears unlikely that there was any that was not used in this case) or such other evidence as might theoretically yet be developed. From our limited vantage point, however, it does appear highly unlikely that the prosecutor would opt to retry this case, in view of the suppression of all physical evidence and in view of the required future suppression of the confession. Although we assume that the State’s Attorney will agree with our assessment in this regard, we nonetheless respect and recognize the right of the independent, constitutional office of the State’s Attorney to make its own decision on this matter. Because our reversal is not upon the grounds of the legal insufficiency of the evidence, Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), we may not arbitrarily interfere with the exercise of independent judgment entrusted, as a part of our delicate system of checks and balances, to the executive branch of government. Cf. United States v. Ewell, 383 U.S. 116, 121, 86 S.Ct. 773, 15 L.Ed.2d 627, 631 (1966).