author: Moore, J.,

text:
    DANNIE LEE WHITMAN v. STATE OF MARYLAND
    [No. 333,
    September Term, 1974.]

      Decided April 3, 1975.

      The cause was argued before Morton, Moylan and Moore, JJ.

      James D. McCarthy, Jr., with whom was Frank R. Weathersbee on the brief, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General and Robert D. Horsey, State’s Attorney for Somerset County, on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

The primary question on this appeal is whether appellant, Dannie Lee Whitman, who had been the subject of an arrest without probable cause, thereafter consented voluntarily to a search of his truck in which was found an illicit cargo of 9,156 cartons of cigarettes, in transit from North Carolina to New York.

The appeal was taken from a judgment of conviction upon a criminal information in the Circuit Court for Somerset County charging appellant with illegally transporting cigarettes without the required Maryland cigarette stamps and with possession of unstamped or improperly stamped cigarettes. After the denial of his motion for suppression of the contraband, the court (Duer, J. presiding without a jury) found appellant guilty of both counts and sentenced him to a fine of $15,000 plus court costs. Concurrent one year prison terms were suspended.

The record discloses that appellant, age 23, was transporting the cigarettes in a red, six-wheel truck, 1974 model, with a long aluminum body, north of the Chesapeake Bay Bridge Tunnel late on the night of December 11, 1973. Unknown to Mr. Whitman, a police informant was following him. Telephone calls were made by the informant to Corporal Thomas M. Windsor of the Maryland State Police at 11:58 p.m. on December 10 and thereafter at 12:50 and 1:15 a.m. on December 11. Trooper Windsor in turn relayed this information to State troopers on the Eastern Shore of Maryland, alerting them to be on the lookout for the vehicle. Trooper Franklin R. Evans of the Maryland State Police in Worcester County had appellant under surveillance and ultimately stopped him in Somerset County, just north of the Worcester County line at approximately 1:30 a.m. He was joined there by Trooper P. L. Thomas.

Appellant was placed under arrest by Trooper Evans: “I advised him we had reliable information he was hauling untaxed cigarettes and placed him under arrest, and read the Miranda warnings to him.” The trooper asked appellant’s consent to a search of the vehicle and appellant refused. The truck was then driven by Trooper Thomas to the State Roads Barn in Somerset County. Appellant was transported to the Barn in the police cruiser by Trooper Evans. Trooper Milton J. Hall, a criminal investigator for the Maryland State Police was contacted to assist in the investigation and assistant State’s Attorney Widdowson of Somerset County was also summoned. Upon the arrival of Trooper Hall at the Barn, it was ascertained that the vehicle was registered to Whitman Furniture Company of Coats, North Carolina, and appellant was advised that he had the right to give permission to open it. As to his response, Trooper Evans testified:

“A. He kept saying no, so we told him that we were going to open the vehicle and we were going to get a search warrant.
Q. You told him you were going to get a search warrant?
A. We started the process to obtain a search warrant.
Q. You started the process?
A. Yes.
Q. And what was that?
A. We were in the process of typing it up and getting the Judge — in fact, the Judge did come to the barn. In between time, the defendant gave us permission. The key to the lock was on the key ring of the vehicle. The defendant opened the rear door and we examined the cargo.
Q. The defendant himself did open the truck for you?
A. He unlocked the lock, yes, sir.
Q. Do you know about what time it was that he gave you consent to open up the truck?
A. I would say about an hour later, hour and a half later. I can’t swear for sure exactly what time.”

Trooper Evans admitted on cross-examination: “I might have said we will go in the truck with or without your consent, so you might as well give it... I advised him what the law was, that we could legally go in there with or without his consent. I believe that’s my wording.” (Emphasis added.) According to Trooper Evans, appellant then stated: “You can go ahead and search it.” Trooper Evans had requested appellant to unlock his truck on two prior occasions and had been refused.

Trooper Hall, who appears to have had the principal role in the investigation at the State Roads Barn, testified that he also twice requested permission to search the truck and added:

“I started the search warrant and typed a few sentences and advised Mr. Whitman it would be a lot less time consumed if we could receive a consent to search. And at the time, after I typed several sentences, he acknowledged that he would permit us to search the vehicle.
Q. Do you know what time that acknowledgment of his came forth?
A. I believe it was approximately 2:30.
Q. What time was your time of arrival at the barn?
A. Shortly after 2:00. I’m not certain.
THE COURT: Was Mr. Widdowson there —
THE WITNESS: Yes, sir.
THE COURT: — when he gave you consent to search?
THE WITNESS: Mr. Widdowson was himself interrogating the defendant.
BY MR. HORSEY:
Q. You mean the Assistant State’s Attorney?
A. Yes, sir.”

On cross-examination Trooper Hall stated that appellant gave his consent to the search after the second request and that the consent came after Trooper Hall in effect stated:

“We are getting a search warrant. It would be a lot less time-consuming if you just go ahead and consent.
Q. And he said?
A. Yes, sir.”

Taking the stand in support of his motion to suppress, appellant recalled Trooper Evans’ stating that the troopers would open the truck whether he consented or not. He described the effect of this statement upon him in the following manner:

“A. Well, I figured if they were going to open it anyway, I might as .well.
Q. Did you say that before you signed this?
A. Yes, sir.
Q. Did that have any bearing on the fact that you signed this?
A. Yes, sir.
Q. What bearing?
A. Well, like I just said, if I was already under arrest anyway, they are going to open it anyway so save a little time.
Q. Did you know you didn’t have to sign that?
A. Yes, sir.
Q. You did know that?
A. Uh-huh.”

The paper to which the appellant affixed his signature was a form entitled “Consent to Search and Seize.” It was executed by him on December 11, 1973 at 2:35 a.m. and contained the following paragraphs after describing the vehicle and granting permission to search it:

“I fully understand that I have a constitutional right to refuse to consent to this search and that the items seized may be used against me in a court trial. I further understand that I have a constitutional right to withdraw my consent at any time and require any further search to be executed on the strength of a legal search warrant.
“This consent has been given by me to the above named officer knowingly and voluntarily and absent of threats, promises or inducements of any kind with the full knowledge that I have waived my constitutional right to refuse this consent.”

In his denial of the motion to suppress, the trial court made the following ruling from the bench:

“I think he made a voluntary consent. It’s true that he was there perhaps an hour. He tells me that the police outside of asking him to consent to open the truck, apparently treated him all right.
“This man was not treated as a hardened criminal. He wasn’t handcuffed. He could move around, smoke if he wanted to, and I suspect he did just about as much as any troopers down there.
“He signed this consent and he knew he consented because he thought it would save time. He had a right to consent and he did it. I think it was voluntary.
“On those grounds, I overrule your motion to suppress the evidence.”

The court did not advert to the question of the legality vel non of appellant’s arrest by Trooper Evans. On this point, however, the record is abundantly clear that the familiar requirements of Aguilar v. Texas, 378 U. S. 108 (1964) — i.e., the basis of knowledge test and the credibility or reliability test — were not satisfied. Trooper Windsor, to whom the informant made the three telephone calls, could provide no testimony concerning the informant’s basis of knowledge and could only testify that he had had two prior calls from the informant some six months before.

In this condition of the record the State concedes in its brief that the evidence “does not sufficiently establish the underlying circumstances for the credibility or reliability of the informant so that the lower court could determine that the police had probable cause to believe that the appellant had committed or was committing a felony.” The State contends., however, that even if the arrest was illegal it does not follow that the search was unlawful for the reason that a subsequent search does not become unlawful and the evidence obtained thereby inadmissible if the accused voluntarily consented to the search, placing reliance upon Anderson v. State, 237 Md. 45, 205 A. 2d 281 (1965) and Lopata v. State, 18 Md. App. 451, 307 A. 2d 721 (1973).

The principal question before us with respect to the denial by the lower court of the motion to suppress the evidence is whether appellant’s consent to the search of the truck was voluntary. Appellant has also challenged the sufficiency of the evidence to sustain his conviction of illegal transportation of untaxed cigarettes.

I

Preliminarily, with respect to the scope of our review, we observe that in the presence of alleged infringements of constitutionally protected rights, we are required to examine the entire record and to make an independent, reflective constitutional judgment on the facts. Davis v. North Carolina, 384 U. S. 737, 741 (1966); Walker v. State, 12 Md. App. 684, 280 A. 2d 260 (1971). As Judge Moylan stated for this Court in Walker (12 Md. App. at 695):

“What we mean, therefore, when we say that we have the obligation to make an independent, reflective constitutional judgrnent on the facts whenever a claim of a constitutionally-protected right is involved is that, although we give great weight to the findings of the hearing judge as to specific, first-level facts (such as the time that an interrogation began, whether a meal was or was not served, whether a telephone call was requested, etc.) we must make our own independent judgment as to what to make of those facts; we must, in making that independent judgment, resolve for ourselves the ultimate, second-level fact — the existence or non-existence of voluntariness.”

Our analysis of the law applicable to the principal question presented here must focus in the first instance upon two leading cases decided by the Supreme Court of the United States: Bumper v. North Carolina, 391 U. S. 543 (1968) and Schneckloth v. Bustamonte, 412 U. S. 218 (1973). In Bumper a black man was brought to trial and convicted upon a charge of rape of a white woman. The conviction was reversed and the case remanded, essentially for the reason that the appellant’s grandmother, a 66 year old widow with whom the appellant lived in a house located in a rural area, at the end of an isolated road, was held not to have consented to the search of her residence and that it was constitutional error to admit in evidence a rifle found in the search and allegedly used by the appellant in the perpetration of the crime.

The grandmother, two days after the alleged offense but prior to the petitioner’s arrest, admitted four white law enforcement officers into the house. One of the officers had announced, “I have a search warrant to search your house.” The woman responded, “Go ahead,” and opened the door. At a hearing on the motion to suppress the prosecutor informed the trial court that he did not rely upon a search warrant but upon the consent of the grandmother. (No such warrant was offered in evidence nor was there any return of a warrant in the record). She testified at the hearing that the officer had not read her the search warrant but he did teil her he had one. She believed he had such a warrant and was quite agreeable to the search of her house:

“. . . He said he was the law and had a search warrant to search the house, why I thought he could go ahead. I believed he had a search warrant. I took him at his word.”

And again she stated:

“Nobody threatened me with anything. Nobody told me they were going to hurt me if I didn’t let them search my house. Nobody told me they would give me any money if I would let them search. I let them search, and it was all my own free will. Nobody forced me at all. ” (Emphasis added.)

In holding that the petitioner’s constitutional rights had been violated, Mr. Justice Stewart, writing for the Court, first stated the rule with respect to the burden of proof where consent is relied upon:

“When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all.” (Emphasis added.)

As to the effect of a law enforcement officer’s claim of authority to search pursuant to a warrant, the Court observed:

“When a law enforcement officer claims authority to search a home under a warrant, ne announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion albeit cobrably lawful coercion. Where there is coercion there cannot be consent. ” (Emphasis added.)

In the instant appeal there was no evidence of a deliberate misrepresentation by the police or by the Assistant State’s Attorney that there was a clear right to the issuance of a search warrant. Bumper is not, however, to be distinguished simply by stating, as does the appellee in its brief, that the State Police did not claim authority to search the truck under a warrant which in fact did not exist and that they “simply indicated that they would obtain such a warrant if appellant refused consent.” This is an understatement of the facts in this case and there remains to be answered the question whether here was also a situation coercion.”

Further guidelines in the determination of the voluntariness of a consent to a warrantless search emerged in Schneckloth v. Bustamonte, supra. There, a police officer on patrol in the early hours of the morning stopped an automobile in which the petitioner, Robert Bustamonte, was riding, the officer having observed that the vehicle was missing a headlight and a license plate light. Five other occupants as well as the petitioner were requested by the police officer to step out of the car and the driver was given a citation for the missing lights and for driving without a permit. None of the occupants was placed under arrest and none was warned of his constitutional rights. The officer, who asserted at trial that the atmosphere at the time was “congenial,” requested and received permission to search the vehicle. Three checks, later ascertained to have been stolen in a burglary, were found under the left rear seat. They were admitted into evidence at the trial over motions to suppress on the ground that there was no consent to the warrantless search of the automobile.

Mr. Justice Stewart, speaking for the majority of the Court, reversed the ruling of the United States Court of Appeals for the Ninth Circuit that it was incumbent on the State to prove that the subject of a search knew that he had a right to refuse consent. The Supreme Court thus upheld the ruling of the lower State courts that the question whether a consent to a search was in fact voluntary or was the product of duress or coercion, express or implied, is a question of fact to be determined from the “totality of all the circumstances.” (Emphasis added.)

The narrow holding of the Court was that when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments impose upon the prosecution the burden of demonstrating that the consent was in fact voluntarily given. With respect to the determination of the element of voluntariness, the Court held:

“Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.” (Emphasis added.)

The Court went on to state that consent searches must not be approved without “the most careful scrutiny” by the court in order to assure the absence of coercion:

“The problem of reconciling the recognized legitimacy of consent searches with the requirement that they be free from any aspect of official coercion cannot be resolved by any infallible touchstone. To approve such searches without the most careful scrutiny would sanction the possibility of official coercion; to place artificial restrictions upon such searches would jeopardize their basic validity. ... In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.” 412 U. S. at 229.

Finally, it was also emphasized that the standard of waiver enunciated in Johnson v. Zerbst, 304 v. S. 458 (1938) would not be applied to cases involving consent to search. “While we have occasionally referred to a consent search as a ‘waiver’, we have never used that term to mean an ‘intentional relinquishment or abandonment of a known right or privilege.’ ”

Before we consider other pertinent cases on the precise issue involved in this appeal, we observe that the State’s reliance on the cases of Anderson v. State and Lopata v. State, supra, is misplaced. Anderson is not apposite because there was no evidence contrary to the testimony of the police that the consent was freely and voluntarily given, so that the trial court’s finding was merely affirmed without any discussion of possible coercion. Lopata v. State, supra, although containing a thorough analysis by Judge Moylan of the then recently decided Schneckloth case, really involved the consent by an innocent third-party to the search of his commercial garage, where there was no arrest and appellant was found to lack even the standing to contest the search. The issue presented here was not reached.

Predictably, the “totality of the circumstances” rule of Schneckloth has since been applied in custodial situations as well by all the United States Courts of Appeals confronted with the question. United States v. Garcia, 496 F. 2d 670 (5th Cir. 1974); United States v. Rothman, 492 F. 2d 1260 (9th Cir. 1973) ; United States v. Heimforth, 493 F. 2d 970 (9th Cir. 1974) , cert. denied 94 S. Ct. 1615; United States v. Cage, 494 F. 2d 740 (10th Cir. 1974); United States v. Campbell, 16 Cr. L. 2508 (4th Cir. 1975); United States v. Hearn and Taylor, 496 F. 2d 236 (6th Cir. 1974); Hayes v. Cady, 500 F. 2d 1212 (7th Cir. 1974); United States v. Watson, 504 F. 2d 849 (9th Cir. 1974), cert. granted February 18, 1975, 420 U. S. 924, 43 L. W. 3452.

That the issue of voluntariness has, since Schneckloth, become “a delicate one” was observed by the Tenth Circuit in United States v. Heimforth, supra, where the appellant was convicted on four counts of illegally importing marijuana and possession of contraband with intent to distribute. On appeal he contended that the search of his warehouse, revealing large amounts of marijuana, was invalid on the ground that his consent to the search was not voluntary. The evidence disclosed that when he consented to the search he had already been arrested. While holding in accord with Rothman, supra, that the Supreme Court’s “totality of circumstances” test was applicable to all consent searches irrespective of whether or not the consenting party is in police custody, the Court in Heimforth pointed out that in considering the factual issue of voluntariness, “an important factor, however, remains whether there has been an arrest piior to the consent.” (Emphasis added.) (The case was remanded to the District Court for the limited purpose of making specific findings concerning the legality of the search — that Court having simply made a general determination that the search was legal.)

Applying the guidelines of Schneckloth, the Sixth Circuit Court of Appeals in United States v. Hearn and Taylor, supra, collated those factors tending to establish a voluntary and uncoerced consent on the part of appellant Taylor to the search of his premises, and also those tending to establish an involuntary and coercive consent search. The record disclosed that local law enforcement officers obtained a State warrant to search Taylor’s premises for a stolen Hobart welder. After locating the welder at one building they continued the search, in quest of a stolen traxcavator, going to a barn 150 yards away. One of the police officers testified that they asked Taylor about the traxcavator and he responded that he was unaware that it was in the barn although he had put hay in there some six or eight months before and had not returned to the barn since then. In response to the officer’s suggestion that they look at it Taylor responded, “Well, let’s go see it.” There they found the traxcavator concealed by the hay. After the discovery, Taylor was permitted to go on his way and turned himself in at the jail later on.

The search warrant for the Hobart welder was defective under the standards of Aguilar v. Texas and the Court found it clear that the continuation of the search after the location of the welder did not comport with constitutional standards. Consequently the admission of evidence concerning the location of the traxcavator could be supported only upon the theory that Taylor’s statements and actions rendered the search a consensual search. The trial court’s finding of a valid consent was overruled and Taylor’s conviction under the count 'of the indictment pertaining to the receiving and concealing of the traxcavator was set aside and a new trial granted.

Placed here in juxtaposition, the factors isolated and analyzed by the Court were as follows:

Non-coercive
“(a) his having been initially given his Miranda advice of rights incident to his arrest on the stolen welder charge;
Non-coercive
(b) his continued freedom of movement and the lack of any physical restraint incident to his arrest upon the stolen welder charge;
(c) his presence on his
own farm and in familiar surroundings;
(d) his acquiescence in the officer’s suggestion to ‘go look at it’ (i.e., the traxcavator) and his affirmative response, ‘Well, let’s go see it’; and
(e) his leading the way to the barn and in mounting the bales of hay in advance of the others.”
Coercive
“(a) the presence of three law enforcement officers on his farm;
Coercive
(b) his initial arrest upon the stolen welder charge;
(c) the suggestion by the officers that the barn be inspected for the presence of the traxcavator;
(d) the use by the officers of information gained by a prior unlawful search as the predicate for their suggestion that the barn be inspected for the presence of the traxcavator; and
(e) the absence of any warning to the appellant that he had a constitutional right to refuse to consent to a search of the barn.”

The Court concluded, upon its evaluation of the above elements, that the coercive would substantially outweigh the non-coercive, quoting the following language from Schneckloth, as did the Court in Garcia, supra:

“In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.” 412 U. S. at 229, 93 S. Ct. at 2049, 36 L.Ed.2d at 864. (Emphasis added.)

Both before and after Schneckloth, there are cases in which the primary thrust of appellant’s claim of reversible error has been the alleged coercive effect of language or conduct of police officers pertaining to obtaining a warrant. Thus, in United States v. Curiale, 414 F. 2d 744 (2d Cir. 1969), cert. denied 396 U. S. 959 (1969), where the appellant was convicted of knowingly possessing three million dimes moving in interstate commerce, a federal agent presented the appellant with a consent form for searching his premises. The officer testified that after reading the form, appellant looked at the officer and remarked “If I don’t sign this, you are going to get a search warrant.” According to the officer, “At that point, I stopped him and said, T don’t want you to sign on that basis. If you are going to sign it, do it voluntary’, [sic] He just looked and signed it.”

The Court of Appeals rejected appellant’s contention that there was, as in Bumper v. North Carolina, supra, an unjustified search. It was found that appellant’s statement concerning the search warrant showed an awareness of his right to resist the search in the absence of a warrant and that although he understood his right he nevertheless chose to relinquish it. As to the effect of the police officer’s response, the Court held:

“Here Aheam’s response was sufficient to put the Appellant on notice that his consent should not be conditioned on the availability or unavailability of a warrant. There was no duty to disclose that at that particular moment in a continuing investigation there was insufficient evidence to get a search warrant. In any case, it is clear that Curíale knew what he was doing. Relying upon the fact that the dimes were so well concealed that they would not be found, the appellant hoped to turn suspicion away from himself by appearing to give the authorities innocent and wholehearted cooperation. His lack of success, by itself, does not affect the voluntariness of his assent.” (Emphasis added.)

In reliance upon Curiale, in United States v. Savage, 459 F. 2d 60 (5th Cir. 1972), the Court in a per curiam opinion held that a written consent was not rendered involuntary by reason of the fact that before signing the form the appellant inquired of the police officer if he could get a search warrant and the officer replied, “Yes, we probably can.” The Court stated: “The officer’s statement was in response to defendant’s inquiry, and it was not a misrepresentation of the facts.”

Implied coercion was claimed by the appellant in United States v. Culp, 472 F. 2d 459 (8th Cir. 1973), cert. denied 93 S. Ct. 2161 (1973), wherein a police officer announced that “[W]e are in the process of getting one [a search warrant]; one of our men is getting one and we’ll search it [the premises] whether you like it or not.” Although the appellant claimed that he agreed to cooperate as a result of this statement and thereafter produced an attache case and a satchel which contained incriminating evidence, the Court found on the record before it that the real inducement for appellant’s cooperation was that the officers “had agreed to be lenient with my wife.” The Court noted, however, that if the officer’s statement had been the only inducement for appellant’s consent, “further analysis would be necessary to determine whether the alleged comment requires a finding of illegal coercion.” In a footnote reference on this point, the Court stated:

“Many cases imply that where law enforcement officers indicate only that they will attempt to obtain or are getting a warrant that such a statement cannot serve to. vitiate an otherwise consensual search.” (Citing cases including Savage and Curióle, supra.)

In another federal case pricer to Schneckhth, United States v. Boukater, 409 F. 2d 537 (5th Cir. 1969), the Court expressed similar concern over the language of the police officer. Appellant had been confronted — but not arrested — by federal agents at the Miami National Airport and was told that he was suspected of carrying counterfeit money. Asked if he would voluntarily consent to the search of his briefcase, appellant stated: “It looks like you got me. You can search my bags.” According to one of the agents he gave his verbal approval to the search. After refusing to sign a written waiver, however, the agent said something to him about getting a search warrant. Writing for the Court, Judge Thornberry stated in the opinion that the agent was very emphatic in testifying that he did not pressure appellant by saying that he would get a warrant and make a search even if appellant withheld consent; he merely said he would attempt to get a search warrant. (Emphasis added.)

In discussing the implications of the agent’s statements about procuring a warrant, the Court observed:

“The statement by Rivers about procuring a search warrant is more troublesome and might lead us to a different result if the evidence indicated that Boukater was in custody and that the agent either said or implied that he might as well consent because a warrant could be quickly obtained if he refused.” (Emphasis added.)

Weighing all the circumstances, however, the Court concluded that the consent was voluntary:

“Since appellant had been advised that he was not under arrest and was free to leave, he would not have been coerced into consenting to an immediate search by the agent’s statement that he would attempt to get a warrant. As we say, this factor is troublesome, but we have concluded that it does not taint the search since everything else points toward completely voluntary consent.”

The Supreme Court of Oregon in State v. Douglas, 488 P. 2d 1366 (1971), in the presence of conflicting trial testimony concerning police officers’ statements with respect to their obtaining a search warrant, held by a divided vote that the appellant’s consent to a search was voluntary. The comprehensive opinion for the majority discloses that appellant was visited at his motel near the place of the crime by two police officers shortly after a burglary at a nearby service station but he declined to give them permission to examine his suitcase. The opinion attributes to the officers and the appellant, respectively, various statements with respect to obtaining a search warrant. One officer testified that he told defendant he would “make an effort” to obtain a warrant; the other, however, said that he told the defendant that he would get a search warrant. The appellant himself, testifying in support of a motion to suppress, stated that when he was alone with one of the officers, he was informed that “it would be better all the way around if I opened it myself because they could get a search warrant.” Appellant also testified that his brother-in-law talked with him in the absence of the police officers and told him that the search warrant was “on its way”; and that upon being so informed by his brother-in-law he emptied the contents of the suitcase. After a discursive analysis and discussion of pre-Schneckloth case law and authorities, the majority opinion of the Court concluded that the evidence was sufficient to sustain the findings of fact by the trial court that the consent was voluntary. The Court’s comments concerning the distinction between a statement by a police officer that he would get a search warrant and a statement that he would apply for one, are significant. It is stated: (p. 1375)

“Since the primary issue to be decided is whether the consent was voluntary or was coerced, we doubt whether the ordinary person, when confronted with a request by an officer to consent to a search, would discriminate between the statement that otherwise the officer would get a search warrant, as compared with a statement that otherwise he would apply for a warrant. If, however, it be considered that such a distinction has controlling significance, and if it also be considered that the evidence in this case was not sufficiently ‘clear and convincing’ to establish that the officer told defendant that otherwise he would apply for a warrant, rather than get a warrant, we nevertheless reach the same result under the facts and circumstances of this case. This is because the defendant in this case testified that what finally ‘prompted’ him to open the suitcase was what his brother-in-law (not the officers) did and said. Thus, he testified that his brother-in-law ‘kept after me to open the suitcase’ and told him, when he said he would ‘wait for the search warrant,’ that ‘they have got it.’ In addition, this is not a case in which defendant merely gave verbal consent to a search. Instead, defendant deliberately opened his suitcase, dumped out the contents and did so not only once, but twice.” (Emphasis in original.)

Two other pre-Schneckloth State adjudications concluded with startling finality, and absent any discussion, that statements by police officers that they would obtain a search warrant vitiate a subsequent consent. State v. Lewis, 454 P. 2d 360 (N.M. 1969); Poe v. Oklahoma City, 483 P. 2d 1190 (Okl. Cr. 1971). In Lewis, a police officer testified that appellant made no objection to the search of his car because another police officer was going to get a search warrant for it “anyway”. The Court of Appeals of New Mexico held flatly: “His consent does not justify the search since it is no more than acquiescence to a claim of lawful authority,” citing Bumper v. North Carolina, supra. In Poe, supra, the record disclosed that appellant was informed by the police that if he did not consent to the search of his automobile it would be impounded and a search warrant obtained. The Court of Criminal Appeals of Oklahoma refused to uphold the State’s contention that the defendant voluntarily consented to the search. In reversing the conviction for possession of marijuana, the Court held: “We are of the opinion that threatening to impound a vehicle and to obtain a search warrant is coercion. It is a well established rule that a waiver obtained by coercion is unlawful.”

In the most recent, reported consent case decided by a United States Court of Appeals, United States v. Faruolo, 506 F. 2d 490 (2d Cir. 1974), there is oddly no reference whatever to Schneckloth, decided seventeen months earlier. It was contended that the appellant Faruolo “reluctantly” signed a consent form permitting the search of his dwelling following the hijacking of a truckload of women’s dresses and wearing apparel. Specifically, it was argued that he signed the document because of an apprehension that the federal agents would arrest his 17 year old son whom they had observed unloading the contraband and also because of an alleged representation by a federal agent that he could get a search warrant. Without referring to Schneckloth, Mulligan, J., stated for the Court that: “We adhere to the view reaffirmed in United States v. Mapp, 476 F. 2d 67, 78 (2d Cir. 1973) that we must look to the ‘totality of the circumstances’ in determining whether a consent to a search is voluntary or not.”

Stating narrowly the question before it, the Court observed:

“The argument is reduced therefore to the proposition that [federal agent] Egan’s statement that he would apply for a warrant, which conveyed the impression that one would be obtained, constituted a coercive factor negating consent. In comparable cases this and other courts have held to the contrary. Here the defendant had been given partial Miranda warnings, he was told that he did not have to consent to the search (in United States v. Mapp, supra, 476 F.2d at 77, we held that failure even to advise the person of the right to withhold consent is not fatal but only one factor to be held in the balance) and he consented after being made aware of the fact that a warrant would be obtained.”

It is apparent, however, that the Court weighed heavily the District Court’s finding that the federal agent’s advice was “well grounded.” (Emphasis added.) In its opinion the Court, indeed, states, “There was no deceit or trickery. The court below found that there was not only a sufficient basis for his communicated belief but that in fact there were grounds for the issuance of a search warrant. This is not at all open to serious question.” (Emphasis added.) The Court then concluded:

“In our view, in light of these cases, the well founded advice of a law enforcement agent that, absent a consent to search, a warrant can be obtained does not constitute coercion.” (Emphasis added.)

In a well-considered concurring opinion in Faruolo, Judge Newman, District Judge, focused on the implications to a defendant of a police officer’s statement that he would get a search warrant:

“Were the slate clean, I would be inclined to reject a finding of voluntariness obtained in response to statements about the obtaining of a warrant that did not in some way affirmatively communicate the discretionary aspect of the warrant-issuing process. If a person is confronted with only the choice of permitting an immediate search without a warrant or waiting the brief interval necessary for a warrant to be obtained, he is misled into believing that the only variable in the choice is time, rather than the far more important variable of whether the warrant will be issued at all. If he consents because he has been led to believe that obtaining a warrant is a virtually automatic formality, then regardless of his apparent willingness to permit the search, he has responded to a situation as ‘instinct with coercion’ as the one in Bumper, where the officer gained entry not with the assurance that a warrant could be obtained, but with the statement that he had already obtained one.”

The precise impact of Schneckloth in terms of its treatment of “psychological coercion” is perceptively analyzed by the United States Court of Appeals for the Ninth Circuit (Duniway, J.) in the case of United States v. Rothman, 492 F. 2d 1260 (Nov. 27, 1973). Mr. Rothman was observed by the ticket agent at the Western Airlines counter at San Diego Airport because he appeared to fit the Federal Aviation Administration’s profile of potential airplane hijackers. Although he passed through the magnetometer at the boarding gate without activating it, he was nonetheless detained for questioning by a Deputy United States Marshal who had been told by the ticket agent that Rothman met the profile.

Uncooperative, Rothman refused to produce identification and also assaulted the Deputy Marshal as the latter was unlocking the door to his office. He was subsequently arrested for assaulting a federal officer, handcuffed and given Miranda warnings. Thereafter his luggage from the plane was brought to the office in which he was being held. He refused permission to search it. Later, his handcuffs were removed and he was handcuffed again with his hands in front of him. The opinion of the Court quotes the following conversation which then occurred:

“Rothman: ‘Why don’t you go ahead and open the bags?’
Deputy: ‘No, if you refuse to open them I don’t want to open them now.’ [Something was then said about a search warrant.] ‘We can get one and probably will later on.’
Rothman: ‘What is the use of going through all this, go ahead and open the bags, it is okay.’
Deputy: ‘No, I don’t want to open them now. I won’t do it. Why don’t you open it now? The keys are laying here on the desk, if you want to open it go ahead.’
Rothman took the keys which had been placed in front of him and opened his luggage which contained thirty-nine kilos of marijuana.”

Prior to reaching its conclusion that the trial judge’s finding of consent was erroneous, the Court adverted to the language of Schneckloth concerning th,e balancing of interests in the ascertainment of the voluntariness of a consent:

“ ‘ Two competing concerns must be accommodated in determining the meaning of a ‘voluntary’ consent — the legitimate need for such searches and the equally important requirement of assuring the absence of coercion.’ Id. at 227, 93 S.Ct. at 2048. Warrantless consent searches are permissible because they enable the police to investigate in situations where the ‘stigma and embarrassment’ of arrest or a ‘far more extensive search pursuant to a warrant’ may be avoided. Id. at 228, 93 S.Ct. at 2048. ‘Consent searches are part of the standard investigatory techniques of law enforcement agencies. They normally occur on the highway or in a person’s home or office, and under informal and unstructured conditions.’ Id. at 231-232, 93 S.Ct. at 2050. The consent search as a tool of police investigation is viewed by the Court as a supplementary aid to routine informal investigatory work which ‘normally occur in a person’s own familiar territory.’ ” Id. at 247, 93 S.Ct. at 2058.

It was thereafter observed, however, that upon the facts presented in Rothman, the “competing concern” of the policy favoring the “legitimate need” for warrantless searches was less significant than under “normal” consent search conditions. The Court stated:

“Here, Rothman was arrested and handcuffed and had been in incommunicado custody for some time when he opened the bags. He was by no means in an informal atmosphere or on familiar grounds. Rather, he was arrested, handcuffed, isolated in a strange place, given a formal Miranda warning and then interrogated by three officers over a period of approximately two hours. Such an environment is akin to ‘the specter of incommunicado police interrogation in some remote station house’ and is squarely ‘inaipposite’ to the questioning environment. contemplated when consent searches were held permissible. Id. at 247, 93 S.Ct. 2041. In a situation such as this the government’s burden to prove voluntary consent is increased. United States v. Page, supra, 303 F.2d 81, 84; Judd v. United States, 1951, 89 U.S.App.D.C. 63, 190 F.2d 649, 651.” (Emphasis added.)

Moreover, the Court rejected the holding of the trial court that since Rothman was aware of his right to refuse consent, his consent was therefore voluntary. Judge Duniway stated that the holding of Schneckloth — that knowledge of the right to refuse is but one factor to be taken into account — “cuts both ways. The knowledge of the right to refuse consent is no longer a necessary condition for valid consent, but neither is it a sufficient condition. It is only an element to be considered as part of the ‘totality of circumstances’. What is required is a ‘careful sifting of the unique facts and circumstances of each case.’ Schneckloth v. Bustamonte, supra, 412 U. S. at 233, 93 S. Ct. at 2050.”

Finally, the Court concluded that under the totality of the circumstances test the psychological atmosphere was of crucial significance. It was observed:

“The psychological atmosphere in which the consent is obtained is a critical factor in the determination of voluntariness. Channel v. United States, 9 Cir., 1960, 285 F.2d 217, 220; Judd v. United States, supra,, 190 F.2d 649, 651. In looking at the factual issue of voluntariness, the court must be aware of the ‘vulnerable subjective state’ of the defendant as well as the possibility of ‘subtly coercive police questions.’ Schneckloth v. Bustamonte, supra, 412 U.S. at 229, 93 S.Ct. at 2049, and the inherently coercive nature of custodial interrogation, Id. at 247, 93 S.Ct. 2041.
“This case is another instance of a custodial investigation in which, ‘viewing the totality of the circumstances,’ we are compelled to hold that the consent was not voluntary because it was systematically psychologically coerced.” (Emphasis added.)

We must conclude, as did the Court in Rothman, that the psychological atmosphere in the instant appeal was critically suggestive. Appellant, age 23, had a tenth-grade education. His principal most recent work experience had been service in the United States Army. He had no prior criminal involvement. To be sure, he had been administered Miranda warnings out on the highway immediately upon his arrest; and he was treated with civility in custody, as the trial court found. He was not handcuffed nor denied the opportunity to smoke nor did he complain of being deprived of food or drink or physical comforts.

It is manifest, however, that the testimony below presented other facts and circumstances of enormous psychological effect and of compelling significance:

1) There was no probable cause for appellant’s arrest, as shown by the evidence and as conceded by the State;
2) He was in custody for at least one and a half hours in the presence of three uniformed State troopers and a prosecuting attorney;
3) He was detained in a strange environment, a room located in the State Roads Barn to which he and his truck had been separately transported;
4) He was subjected to questioning by at least two uniformed State troopers and by the prosecuting attorney;
5) In his presence, telephone calls were made after two o’clock in the morning to a local District Court judge and the circumstances were such as reasonably to induce appellant’s belief that the judge was enroute to issue a search warrant;
6) The search warrant papers were being typed in his presence after refusals on his part of several requests to consent to the search of his truck and appellant was told by the officer at the typewriter that less time would be consumed if he consented to the search;
7) The State police had previously “advised him what the law was” and had stated unequivocally that they could legally conduct the search with or without appellant’s consent;
8) Appellant’s ultimate oral and written consents were given after about one and a half hours in custody, at approximately 2:30 a.m., as he expressed it, and as the trial judge found, to save time. “. . . if I was already under arrest anyway, they are going to open it anyway so save a little time.”

The Supreme Court of Oregon observed in State v. Douglas, supra, that the “subject of illegal searches and seizures is one of the most confused and difficult subjects of the law today” and noted also that the variety of views expressed on the subject of consent searches seems to defy reconciliation. Without taking issue with the views thus expressed, we think the clear teaching of Bumper, later expressly enunciated in Schneckloth and its progeny, including Rothman, supra, (and patently the rationale of Miranda) is that the will of the individual in custody may be overborne by less than physical force or threats, or an atmosphere charged with hostility, duress or violence. The lesson articulated by Bumper and Schneckloth in the area of search consents is that the individual subjected to the search may indeed be submitting rather than consenting, even in an atmosphere of relative cordiality because of the presence of psychological forces as potent and effectual in achieving a “consent” as the traditional techniques and familiar instruments of physical “persuasion.” We must, we find, be guided by the holding in Bumper that a consent which is actually simple acquiescence to lawful authority is not voluntary and, when the defendant is in custody, by the concern expressed in Schneckloth that “in examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.”

While each case must rest for decision upon its own facts and the “totality of the circumstances,” an arrest without probable cause followed by custodial prodding for the arrestee’s consent to a search, combined with police representations that the issuance of a warrant will be practically automatic — these are circumstances calculated only to persuade the individual that insistence upon Fourth Amendment guarantees will secure for him merely a delay of the inevitable search rather than the protection against unreasonable search and seizure to which he is constitutionally entitled. Such a melange of fact and circumstance as was here presented is, we think, inherently coercive.

The final capitulation of the appellant was the inevitable consequence of his “vulnerable subjective state” and the “subtly coercive” statements and conduct of his captors. In the totality of the circumstances above enumerated, his consent was lacking in voluntariness. It was error to deny the motion to suppress.

II

In the light of our determination that the contraband should have been suppressed, we find it unnecessary to consider the alternative claim that the evidence was insufficient to show a violation of Article 81, § 455 of the Annotated Code of Maryland prohibiting transportation of unstamped cigarettes without the required shipping documents.

Additional probative evidence with respect to the legality of the search may be available to the State. Therefore, we shall remand for a new trial. Upon remand, the State will bear the burden of demonstrating to the satisfaction of the lower court that it can produce additional probative evidence. Such evidence shall be presented within such time as may be authorized by the lower court. If the lower court is satisfied with the presentation by the State, it shall hold a new trial; if not, it shall enter a judgment of acquittal. See Gray v. State, 254 Md. 385, 255 A. 2d 5 (1969); Smith v. State, 8 Md. App. 163, 258 A. 2d 755 (1969).

Judgments reversed; case remanded for a new trial; costs to be paid by Somerset County.

      . It appears that Trooper Hall was in communication with District Court Judge Lloyd Simpkins who also came to the State Roads Barn but apparently arrived after the consent had been given.

      . Trooper Thomas testified that he himself clipped the seal on the lock but could not state definitely whether he or the appellant turned the key in the lock. Trooper Hall also recalled that Trooper Thomas cut the seal but was uncertain as to who unlocked the padlock.

      . We have here no first-level fact findings by the lower court with respect to the psychological impact upon the appellant of being confronted by the three uniformed and armed State troopers and the Assistant State’s Attorney, their obvious consensus that a search warrant would issue and the additional circumstance that a judge who had been telephoned from the place of custody was apparently enroute from his home at 2:30 in the morning in order to sign the warrant.

      . For a comprehensive presentation of consent cases, see Annotation, “Validity of Consent to Search Given by One in Custody of Officers”, 9 A.L.R.3d 858 (1966).

      . See, Note 15, 391 U. S. 550 where the majority opinion states that no warrant was ever returned and “there is no way of knowing the conditions under which it was issued, or determining whether it was based upon probable cause.”

      . Distinguishing Bumper, the U.S. Court of Appeals for the Fifth Circuit in Hoover v. Beto, 467 F. 2d 516 (1972), held that the search of appellant’s home was not constitutionally invalid under Aguilar v. Texas and quoted with approval language of the lower court that, unlike Bumper where “the party in question was a 66 year old Negro widow of patently limited education ... petitioner here was himself a lawyer with extensive criminal experience in criminal law and its practical realities. While this is not necessarily a controlling distinction here, it is a circumstance.” 467 F. 2d at 522.

      . Schneckloth is analyzed critically in 12 Am.Crim.L.Rev. 231-249 (1974); 52 N.C.L.Rev. 644-654 (1974); and 49 Notre Dame Lawyer 891-906 (1974).

      . In contrast with the instant appeal, the Court observed that “the present case does not require a determination of the proper standard to be applied in assessing the validity of a search authorized solely by an alleged consent that is obtained from a person after he has been placed in custody. We do note, however, that other courts have been particularly sensitive to the heightened possibilities for coercion when the ‘consent’ to a search was given by a person in custody.” (n. 29, 412 U. S. at 241).

      . The California State Courts had followed these principles in affirming the respondent’s conviction but the Court of Appeals for the 9th Circuit remanded the case for an evidentiary hearing because the prosecution had failed to prove that consent to the search had been made with the understanding that it could be freely withheld.

      . We accept, of course, the holding of Anderson that an illegal arrest does not, without more, vitiate a free and voluntary consent. We note, however, the language of the U. S. Court of Appeals for the District of Columbia Circuit in Judd v. U. S., 190 F. 2d 649 (1951), a case cited in Schneckloth as one of those dealing with consents given while in custody:
      “This burden on the Government is particularly heavy in cases where the individual is under arrest. Non-resistance to the orders or suggestions of the police is not infrequent in such a situation; true consent, free of fear or pressure, is not so readily to be found.”

      . The Court of Appeals reversed the conviction of Watson because it held there was an illegal arrest (made without a warrant), and additionally that his consent to search given while in custody after his arrest was not voluntary.

      . He had served in Vietnam and had recently been honorably discharged and married.

      . It seems probable that cases discussed supra, holding that the consents were voluntary, e.g., Boukater, Douglas and Faruolo, would have reached contrary results given the circumstances here noted.


source: Caselaw Access Project

author: Menchine, J.,

license: Public Domain

text:
    WILLIAM EVERDELL v. JOHN LEE CARROLL et ux.
    [No. 478,
    September Term, 1974.]

      Decided April 3, 1975.

      The cause was argued before Moylan, Menchine, Davidson and Melvin, JJ.

      Roger D. Redden, with whom were Francis X. Wright and Robert R. Price, Jr., on the brief for appellant.

      Howard Wood and James D. Wright for appellees.
   Menchine, J.,

delivered the opinion of the Court.

Time was that the private lane commencing at Tilghman’s Neck Public Road (now DeCoursey Thom Road) served without incident the 590 acre tract through which it ran to the farthest reaches of the land. Nor was its course impeded, save by farm buildings that forced in part a snake-like course, by intersecting lanes and by 90 degree turns. While the tract was singly owned, its users traversed the lanes in seeming harmony, their free passage unobstructed by gates, the speed of their travel limited only by the caution induced by its described design, by the screening effect of natural and planted trees and shrubs and by the signs posted by its owners to indicate its hazards. Unhappily, this harmony, this heaven’s first law, changed to discord when the owners of the entire tract disposed of parts of the estate.

The entire tract, known as Blakeford Farm, had been in the ownership of Clarence W. Miles and wife (Miles). The southern and western borders of Blakeford Farm, in Queen Anne’s County, Maryland, extended to the waters of Queenstown Creek and of the Chester River, respectively. By deed dated March 13, 1958, Miles conveyed to Potter a tract of 18.113 acres situate and lying at the actual confluence of the two bodies of water at the southwest corner of the whole tract. That deed contained the following clauses:

“TOGETHER with the buildings and improvements thereupon erected, made and being, and all and every the rights, roads, ways, waters, privileges, appurtenances and advantages to the same belonging or in anywise appertaining; and TOGETHER WITH the right of ingress to and egress from the above described property in common with the said Clarence W. Miles and Eleanor A. Miles, his wife, their assigns, the survivor of them, his or her heirs and assigns, over the private lane leading from the Tilghman’s Neck Public Road into and through the farm building area of Blakeford Farm, and thence by a farm lane to the northerly end of a twenty-foot Right-of-Way surveyed by Shew & Bartlett on July 29, 1957, and thence by said twenty-foot Right-of-Way to the land hereinabove decribed and hereby conveyed.”

On June 15, 1970 Potter conveyed the entirety of the 18.113 acre tract to the appellant, William Everdell (Everdell). The latter deed contained the following clause:

“TOGETHER with the buildings and improvements thereupon erected, made or being and all and every the rights, roads, ways, waters, privileges, appurtenances and advantages to the same belonging or in anywise appertaining; and especially together with the right of ingress to and egress from the above described property in common with Clarence W. Miles and Eleanor A. Miles, his wife, their assigns, the survivor of them, his or her heirs and assigns, over the private lane leading from the Tilghman’s Neck Public Road by the route fully described in said deed; * * * ”

It was purchased at a cost of $185,000.00.

On June 30, 1970 Miles conveyed to appellee, John Lee Carroll (Carroll) a 266.256 acre tract from the remaining acreage. That deed contained the following clauses:

“* * * TOGETHER with a perpetual easement of ingress and egress at all times by all means and for all purposes, upon, over and across the existing entrance lane thirty (30) feet wide leading from the public road now known as the DeCoursey Thom Road, formerly known as the Tilghman’s Neck Public Road in a generally southerly direction to the real estate hereinabove described and hereby conveyed, in common with the said Clarence W. Miles and Eleanor A. Miles, his wife, their heirs and assigns.
SUBJECT NEVERTHELESS to the legal effect of the easements granted to Virginia B. Potter, her heirs and assigns, by the said Clarence W. Miles and Eleanor A. Miles, his wife, by deed dated March 13, 1958, and recorded among said land records in Liber T.S.P. No. 40, folio 23; * * *.”

The Carroll tract enveloped all land boundaries of the Everdell tract, extending from Queenstown Creek to the Chester River.

The previously recited clause in the deed from Miles to Potter, coupled with that in the subsequent deed from Potter to Everdell, had the legal effect of making the remaining property of Miles and ergo, the property of Carroll, servient to the dominant right of Everdell to the extent of the interest thereby created and conveyed. Desch v. Knox, 253 Md. 307, 310, 252 A. 2d 815, 817.

In the subject litigation Everdell, owner of the dominant estate, sought to enjoin Carroll, owner of the servient estate, from maintaining allegedly unlawful obstructions within the right-of-way. The answer of Carroll admitted placement of “bumps” and barriers along the lane, but maintained in substance that they did not impinge upon Everdell’s reasonable use of the lane and were within Carroll’s dominion as reasonably necessary for his enjoyment of the fee through which the lane ran. The answer also alleged that Everdell was estopped to seek injunction because he had made “representations that he would join in such experimentation.” Carroll also filed a counterclaim, alleging agreement by Everdell to relocate the 20 foot right-of-way leading from the Everdell property to the east-west leg of the farm lane. The trial court denied Everdell’s claim for injunction and dismissed Carroll’s counterclaim.

Although both Everdell and Carroll entered appeals from the decree of the trial court, the brief of Carroll declares: “The denial of the Counterclaim is not a subject of this appeal.” Such denial will, accordingly, not be considered in this opinion.

We hold that the recited clause in the deed from Miles to Potter, supra, granted a right-of-way only. The deed evidenced a clear intent to retain in Miles such other rights or benefits of his fee simple estate as were not inconsistent with such grant.

In 1829 it was declared in Bosley v. Susquehanna Canal, 3 Bland 63, 67:

“A right of way, whether public or private, is essentially different from a fee simple right to the land itself over which the way passes. A right of way is nothing more than a special and limited right of use; and every other right or benefit derivable from the land, not essentially injurious to, or incompatible with the peculiar use called the right of way, belongs as absolutely and entirely to the holder of the fee simple as if no such right of way existed. He is, in fact, for every purpose considered as the absolute owner of the land, subject only to an easement or servitude; he may recover the land so charged by ejectment; he may bring an action of trespass against any one who does any injury to it, not properly incident to an exercise of the right of way; he has a right to the trees growing upon it; to all minerals under its surface; he may carry water in pipes under it; and the freehold with all its profits, not inconsistent with the right of way, belong to him.”

There has been no departure from that rule of law. Desch v. Knox, supra.

The deed from Miles to Carroll granted and conveyed by metes and bounds description all the right, title, interest and estate in the 266.256 acre tract, subject only to the right-of-way previously granted by the Potter deed. Contained within that description was that part of the bed of the farm lane involved in the subject proceeding. Thus Carroll became seized and possessed of the fee simple estate therein except to the extent that the same had become servient to the right-of-way previously granted by Miles to Potter. All rights of Potter, of course, by mesne conveyance had been granted and conveyed to Everdell.

We find that our decision is controlled by the rules of law laid down in Baker v. Frick, 45 Md. 337. Although an action at law, Baker v. Frick is a leading case, applicable to and cited with approval in injunction cases. This case first enunciated in Maryland the rules of law under which the respective rights of the owners of dominant and servient estates are to be determined in disputes relating to modification of rights-of-way. At page 340, et seq., it was said:

“The road in question is a private way over the defendant’s lands. ‘Nothing passes as incident to such a grant, but that which is necessary for its reasonable and proper enjoyment.’ 3 Kent, 419, 420.
“What is necessary for such reasonable and proper enjoyment of the way granted, and the limitations thereby imposed on the use of the land by the proprietor, depends upon the terms of the grant, the purposes for which it was made, the nature and situation of the property subject to the easement, and the manner in which it has been used and occupied.
“As said by Marshall, C. J., in Maxwell v. McAtee, 9 B. Mon. 21, ‘Notwithstanding such a grant, there remains with the grantor the right of full dominion and use of the land, except so far as a limitation to his right is essential to the fair enjoyment of the right of way which he has granted. It is not necessary that the grantor should expressly reserve any right which he may exercise consistently with a fair enjoyment of the grant. Such rights remain with him, because they are not granted. And for the same reason, the exercise of any of them cannot be complained of by the grantee, who can claim no other limitation upon the rights of the grantor, but such as are expressed in the grant, or necessarily implied in the right of reasonable enjoyment.’
“In that case it was decided that ‘the grant of a right of way over or through the lands of an individual, does not imply that the grantor may not erect gates at the points, where the way enters and terminates.’ That decision has been approved by courts of high authority in otjier States. Bean v. Coleman, 44 N. H. 539; Garland v. Farber, 47 N. H. 301; Hoopes v. Alderson, 22 Iowa, 161; Bakeman v. Talbot, 31 N. Y. 366, 370, 371; Huron v. Young, 4 Lansing, 63.”

The Court added at 343:

“The questions whether under all the circumstances of the case, as disclosed by the testimony, the gates were necessary to the defendant for the useful and beneficial occupation of his land, looking to the situation of his property; and whether the particular gates complained of, were usual and proper under the circumstances, and the further question whether their existence upon the road interfered with the reasonable use of the right of way by the plaintiff, considering the situation of his property and the manner in which it was occupied, and the interest of the parties as to the mode in which the right of way was to be used; these were all questions proper to be decided by the jury, upon the evidence in the case. On all these questions testimony was offered, legally sufficient to be submitted to the jury.
“ ‘The doctrine that the facilities for passage where a private right of way exists, are to be regulated by the nature of the case, and the circumstances of the time and place, is very well settled by authority. Hemphill v. Boston, 8 Cush. 195; Cowling v. Higinson, 4 M. & W. 245. The last case determines in effect, that the extent of the privilege created by the dedication of a private right of passage, depends upon the circumstances and raises a question for the determination of the jury.’ Bakeman v. Talbot, 31 N. Y. 370. We refer also to Hawkins v. Carbine, 3 Exch. 914, and Huron v. Young, 4 Lansing, 64.”

In substance, Baker v. Frick had stated the proposition that, unless the terms of the grant itself prohibited such a course, or the purposes for which the grant was made, and the nature and situation of the property subject to the easement and the manner in which it has been used and occupied, implied such prohibition, the installation of a gate at the terminii of the right-of-way would be permissible if:

1. Its installation was necessary for the useful and beneficial occupation of the land of the servient estate; and
2. The particular gates complained of, were usual and proper under the circumstances; and
3. The installation did not interfere with the reasonable use of the right-of-way by the dominant estate.

We address ourselves to the threshold question, namely, whether the right of the servient owner to make any modification of the right-of-way is prohibited either by the specific terms of the grant or by necessary implication.

The granted right-of-way did not in express terms deprive Carroll of the right to erect gates and thus did not expressly grant to Everdell an open road without gates. The purpose for which the grant was made is apparent from its very terms, namely, “the right of ingress to and egress from the [Everdell] property in common with the [fee owner].”

The nature, situation, use and occupation of the property subject to the easement at the time of its creation, however, is not capable of such easy definition. That part of the total right-of-way with which the present litigation is concerned was not the subject of a metes and bounds description, the document of its creation delineating it merely as a “private lane leading from the Tilghman’s Neck Public Road into and through the farm building area of Blakeford Farm and thence by a farm lane to [a fully described twenty foot right-of-way]. The lane, replete with 90° turns, literally divided the Miles (now Carroll) tract into segments of various shapes and sizes. Movement, either afoot or by vehicle, from segment to segment of the servient estate, compelled continuing passage along or across its irregular route by its owner in the daily use of the lands through which it passed. Numerous dwellings, garages, sheds, silos and other farm buildings in close proximity to the lane were in such positions along its serpentine course that their utilization compelled movements into, across and along its path.

We are persuaded that a necessary modification of the right-of-way by the owner of the servient estate was not explicitly or implicitly forbidden by the grant in the subject case. This conclusion simply means that the threshold requirement of Baker v. Frick has been met and we are required to pass to the elements essential to the application of its doctrine, namely, whether the evidence shows: (a) that modification of the right-of-way was necessary for the useful and beneficial occupation of the servient estate; (b) that the installations were usual and proper under the circumstances; and (c) that the installations did not interfere with the reasonable use of the right-of-way by Everdell.

Both Everdell and Carroll had rented their respective homes for about two years prior to their purchase. No traffic devices had been installed during that period. There was testimony to the effect that speeding vehicles on the lane had been a problem since 1956 with three or four accidents. None of the accidents had occurred at the points where “bumps” or barricades had been placed by Carroll. Both Carroll and Everdell are seasonal users of their respective properties.

The installation by Carroll of a series of “bumps” was a forerunner to the subject litigation. Although their installation initiated the Carroll-Everdell dispute, no substantial role was played by the “bumps” in continuing complaints by Everdell against Carroll or in the testimony of the witnesses. Indeed, the record tends to suggest that a decrease in the elevation of the “bumps” had created conditions whereby they no longer presented objectionable deterrent to the movement of traffic.

While the dispute concerning the “bumps” was raging between Everdell and Carroll and their respective counsel, discussions turned to possible use of some type of barricade to accomplish speed reduction of vehicles using the lane, in lieu of the “bumps”. Everdell acknowledged such discussions, but protested vehemently when Carroll, without further notice, caused to be constructed and installed six gate-like wooden barricades, each approximately of the same size and shape, with a length approximately one half the width of the lane. The six partial barricades were set up in three pairs. These pairs, described by the witnesses as barricades 1, 2 and 3, were installed in the lane in that progressive order from the direction of the public road toward the Everde.ll property. Placed on opposite sides of the lane, each half-gate of the pair would be set up at varying distances from its companion. We have reproduced a portion of plaintiffs Exhibit D showing the passage of the lane through the Carroll property with locations of the “bumps” and barriers indicated upon it.

Barricade No. 1 was set up at a point where the lane began its passage through the first turn in the farm building area, with its first barrier being set up on the north side of the lane and the other barrier set up at a point near the stable on the opposite side. The outer wings of the respective barriers were 24 feet apart.

Barricade No. 2 was installed at the southernmost end of the farm building area with its first barrier placed at a point in the lane near the side of a garage and the other barrier set up beyond it on the opposite side. The outer wings of the respective barriers were 25 feet apart.

Barricade No. 3 was set up along the east-west course of the lane with its first barrier placed on the south side of the lane in approximate line with a hedge row 6 feet high at the end of a field planted in corn. Both the hedge row and the growing corn served to restrict visibility at the point. Its second barrier was placed on the opposite side of the lane in front of a garage or tool shed and shop. The outer wings of these respective barriers were 20 feet apart. For reasons that will hereafter become manifest, barricade No. 3 is at once the principal vexation of Everdell and the indispensable requisite of Carroll. The separate wings of barricade 3 are the closest of any. We have reproduced, in part, plaintiffs Exhibit D-3, a plat showing the point of placement in the lane.

The barricades initially were constructed in the form of half gates standing upon small attached platforms at either end. Later the first two barricades were hinged to metal rods inserted in pipes driven into the ground at or near the edge of the road. The third barricade was hinged to wooden posts but installed in such a way that swinging movement was limited by copper tubing so fixed upon the barrier that it could be moved up or down into or out of a pipe sunk into approximately the center of the right-of-way.

Carroll’s reasons for the placement of the “bumps” and barricades are substantially fully articulated in the following quotation from his testimony:

“We gave this a good deal of thought and decided there were three real bad places, one at this corner of the farm yard, at the south corner of the farm yard, and in this work shed area just north of our house, those seem to be the three main danger points. The reason for the latter was cars would come out here at the north end of Mr. Everdell’s described right-of-way and they would build up whatever, according to the type of car they had, whatever speed they could and really come in this turn with quite a bunch of speed. All of a sudden there was a very straight road and a very settled area and we felt we had to have some way of slowing them down at this place.”

In further reference to barricade No. 3 Carroll said: “In order to get from our house to any main enjoyment of our living area of the farm we have to cross this road, and we do it continually.”

Motion picture films showing the movement of vehicles through the several barricades formed part of the evidence presented in the trial court. Those films were shown also in this Court during the argument on appeal. The films showed the movement of: (a) a passenger vehicle and (b) a truck through the barricades in each direction. Such movements could be made at slow speed through barricades 1 and 2 without leaving the established course of the lane, although those barricades did occupy a portion of the bed of the existing lane. The passage of the vehicles through barricade 3 could be accomplished only at slower speed and by leaving the established course of the lane. The trial judge described this condition as follows:

“The film shown by Defendant of this area [Barricade No. 3] indicates a modest weave of a vehicle of less than 50 degrees for a distance of less than 25 feet.”

Our view of the films indicated that the vehicles shown were compelled to leave the established lane and to encroach upon the lands of Carroll, the truck to a greater extent than the passenger vehicle.

Everdell summarized his basic objection to the barricades as follows: (1) they forced vehicles to leave the established way; (2) they operated to delay heavy equipment that could produce very serious harm or inconvenience; (3) they may not be movable in the event of snow; (4) they forced motor vehicles onto the wrong side of the lane, thereby placing them in the path of oncoming traffic, and (5) at night, people unfamiliar with their existence were endangered by their presence.

Leonard Yates, a realtor, testifying as an expert witness for Everdell, said that the “bumps” and barricades reduced the value of the Everdell property. He explained that prospective purchasers would ask themselves, “If this can be constructed what else can be done to this right-of-way?” He said that close inquiry normally is made by prospective buyers about rights-of-way. On the other hand, Robert Sharp, a real estate broker called by Carroll, testified that in his opinion the “bumps” and barricades had no depreciating effect upon the value of the Everdell property. The rhetorical question asked by Yates points up the dangers inherent in unilateral modification of a right-of-way particularly here, where it is conceded that actual collisons have occurred on other parts of the lane but never within the areas of the subject modifications.

Two witnesses, one the Chief of Police of Centreville, called by Everdell, thought that barricade No. 3 would constitute an added danger because of its screening effect upon the movement of small children across the lane. No other lane in Queen Anne’s County had such barricades.

The garbage truck could pass through the barricades only by swinging them upon their hinges. The fire chief of the nearby Volunteer Fire Department testified that fire equipment consisting of an “aerial platform” and an “800 gallon pumper” went through the first two barricades “without much difficulty, the third one we did have to slow down and move the gate.” He doubted whether the tank wagon and the tractor trailer of the fire department “could get through that barn area * * * even without the gates there.”

That the trial judge gave great weight to the testimony of Steven D. Peterson, an expert witness produced by Carroll, is apparent from this excerpt of the court’s opinion:

“The. Court also places great weight and confidence in the testimony of Steven D. Peterson, a traffic engineer who qualified as an expert in the field, employed by the Carrolls to make a study of the right-of-way and recommend traffic control devices for the safety of those residing on the property and all who use the right-of-way.
“Mr. Peterson stated that Defendants were warranted in their fear of traffic accidents at two blind zigzag corners where traffic might go 25 m.p.h. if not slowed; and also there is a danger spot in the area of the machinery shed. This is a Vio mile straightway that traffic could approach at a high rate of speed unless controlled in some manner.
“Mr. Peterson recommended the traffic controls now in use and feels that they are proper to control the traffic in the areas considered dangerous on the right-of-way. He also recommended warnings to the public of the location of the barricades, as well as trimming of the shrubbery where it might obscure parts of the roadway for travelers.
“Mr. Peterson also stated that there had been no substantial number of accidents, but close calls; and that he estimated there were not over 100 vehicles a day on the property, around 30 in the farm building area, and around 5 to 7 go through and use the third barricade.”

Although Baker v. Frick dealt with a case involving gates placed at the terminii of the right-of-way, we do not limit application of its rule to such cases. Indeed, in Frank v. Benesch, 74 Md. 58, 21 A. 550, where the Court approved modification along the course of the right-of-way by the owner of the servient estate, Baker v. Frick was cited with approval. Nor is there any doubt that the rule of Baker v. Frick continues viable. It was cited with approval in Simon Distributing Corp. v. Bay Ridge Civic Association, 207 Md. 472, 114 A. 2d 829, and in Reddick v. Williams, 260 Md. 678, 273 A. 2d 153, although the right of the servient estate to modify the right-of-way was denied in both. It was denied in Simon because the proof did not even meet the threshold question — the purpose of the grant itself implied a prohibition against gates. It was denied in Reddick because the installation of a gate interfered with the reasonable use of the right-of-way by the dominant estate.

In the subject case the trial judge, declaring that he was “impressed by the manner and seriousness with which Mr. Carroll * * * addressed himself to the dangerous traffic problem on the right-of-way” found that Carroll “has not done anything unreasonable in making an effort to control traffic on the right-of-way through his 266+- acre property, for the protection of those living there as well as others using the right-of-way,” and “that the offset barricades are not an unreasonable interference with plaintiff’s right of common use of the right-of-way for ingress and egress and are necessary for the safe and normal use of the right-of-way by defendants and others.” Determination of those questions where the facts are in dispute, is a matter for the trier of facts. Baker v. Frick, supra, at 343; Gillett v. Van Horne, 36 S.W.2d 305 (1931 Tex. Civ. App.); Annotation, 52 A.L.R.3d 9, et, seq. We cannot say that the conclusion of the trial judge is clearly erroneous as to barricades no. 1 and no. 2. Maryland Rule 1086.

Barricade no. 3, however, stands in a different legal position. The testimony is uncontroverted that in the movement of vehicles through the barriers forming this barricade, they are compelled to leave the established right-of-way. A right-of-way may not be relocated without the consent of the owners of both the dominant and servient estates. Millson v. Laughlin, 217 Md. 576, 588, 142 A. 2d 810, 816.

We hold accordingly, that the appellant is entitled to an injunction requiring removal of barricade no. 3 in its present form unless barred by estoppel.

Estoppel

Carroll urges that in any event, Everdell is estopped by conduct from obtaining the relief he seeks. Conversations and correspondence concerning the right-of-way had been carried on between Carroll and Everdell and their respective counsel. Initially they related to protests by Everdell because Carroll had installed, without prior agreement, two “bumps” in the area of the farm buildings. Everdell’s objections were disregarded and additional “bumps” were installed by Carroll in the east-west section of the lane after notice to, but again without the consent of Everdell. The latter installation infuriated Everdell because of the severe jolting effect upon vehicles and their passengers upon approaching and leaving his dwelling. The “bumps” were scaled down following meetings between Carroll and Everdell, but even then were left at an elevation regarded as too high by Everdell. Everdell continued to protest. Meetings followed at which discussions were had concerning introduction of a new right-of-way to eliminate the need for the “bumps.” As heretofore stated, Carroll did not press his appeal from the decree rejecting his claim that agreement upon a new right-of-way had been reached by the parties. It was during such meeting that experimentation with barricades was discussed. The trial judge said that he could not find that the parties had reached a meeting of the minds on an agreed location for barricades. We cannot say that his conclusion was clearly erroneous. Rule 1086.

J. F. Johnson Lumber Co. v. Magruder, 218 Md. 440, 147 A. 2d 208; Vogler v. Geiss, 51 Md. 407; and Millson v. Laughlin, supra, all cited by the appellees on the estoppel issue, do not aid them. In Johnson, the Court declared at 448 [212] that the doctrine “* was educed to prevent the unconscientious and inequitable assertion of rights or enforcement of claims which might have existed or been enforceable, had not the conduct of a party, including his spoken and written words, his positive acts and his silence or negative omission to do anything, rendered it inequitable and unconscionable to allow the rights or claims to be asserted or enforced.” Everdell’s protests, early and late, negate estoppel. He had expressed willingness to negotiate, but this seems to have been followed only by unsatisfactory unilateral action presenting him with a fait accompli. In Vogler, the Court reversed because evidence tending to show agreement to an easement change had been ruled inadmissible. That case offers no guide to our decision. In Millson, (589 [817]) the record showed that “[t]here was evidence from which the conclusion could be drawn that the defendant had abandoned the old road when she never used it after acquiescing in the construction of the new straighter road and had never protested the closing of the old road.” All are patently distinguishable from the subject case. Here there was a mere agreement to experiment. We urge continuation of experimentation in efforts to reach agreement. We can find in this record, however, no action or inaction by Everdell such as operated to bar his right to claim relief in the subject litigation.

Reversed in part and affirmed in part and case remanded for issuance of an injunction as to barricade No. 3.

Costs to be divided.

      . Detailed description of the last mentioned right-of-way is omitted because it does not affect, save in a quite collateral way, the present dispute between the parties.

      . By deed of even date, John Lee Carroll conveyed an undivided one-half interest in the tract to his wife, Cornelia T. Carroll. She was joined as a party defendant and is an appellee in this Court.

      . The precise nature of the proceedings is obscure, the opinion stating at page 338: “The case was docketed by consent, and all errors of pleadings and questions of jurisdiction were waived by agreement.”

      . The fully described right-of-way leading from the last mentioned farm lane to the Everdell residence has undergone no change. It thus plays no part in this aspect of the litigation. It does bear collaterally upon an alleged estoppel urged by Carroll. This will be discussed infra.

      . Attached hereto in Appendix.

      . Attached hereto in Appendix.

      . The record shows the following testimony concerning barricade 3 as it existed at the time of trial:
      “ ‘Mr. Carroll has just modified the final set of barricades by swinging them on posts and hinges so that they swing very freely. Each of these gates is held in place in the roadway by a short piece of three-eighths inch copper tubing inserted through a staple on the gate into a pipe socket in the ground. It would take hardly any force to break any such tubing. Therefore, Mr. Carroll wanted me to notify you that the fire truck should just bump the gate open without any need to stop and lift it aside as formerly.’
      Q. Now, assuming the description in my letter is accurate in this final modification this would mean, would it not, that your equipment could go all the way to Mr. Everdell’s house without having to stop, is that right?
      A. That is correct.”
      The trial court then inquired:
      “THE COURT: What would be the effect of a snow on this Mr. Starkey?
      THE WITNESS: I would say we would have to stop and open them up if it was any amount at all.
      THE COURT: In the meantime, the Everdell’s house could burn down?
      THE WITNESS: If we couldn’t get there, this is true, right.”
      The ancient manor house on the land had been destroyed by fire in 1970 during the ownership of Miles.
      There was other evidence that it was the imposed duty of a tenant farmer engaged by both Carroll and Everdell, to keep the lane clear of snow and that the barriers furnished no impediment to its removal.