Adair v. Warden of the Maryland Penitentiary

235 Md. 653 (1964) 202 A.2d 764

ADAIR
v.
WARDEN OF THE MARYLAND PENITENTIARY

[App. No. 88, September Term, 1963.]

Court of Appeals of Maryland.

Decided July 28, 1964.

Before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT, HORNEY, MARBURY and SYBERT, JJ.

PRESCOTT, J., delivered the opinion of the Court.

In his application for relief under the U.P.C.P.A., petitioner raised some eleven contentions, all of which were adequately and properly determined by Judge Harris below with the exception of the first, second and sixth.

He alleges in these three contentions that he was illegally arrested and certain articles were obtained as a result of an illegal search and seizure, (at a time not specified), which were offered in evidence against him at his trial. Judge Harris cited cases decided by this Court to support his rulings on these contentions, and the cases cited were authority for his ruling. However, recent decisions of the Supreme Court of the United States, which are controlling on federal constitutional questions, have required a modification of, or change in, some of our previous holdings.

Petitioner does not specifically allege that any articles seized from his person at the time of his alleged illegal arrest were used against him at his trial, but the allegation that he was illegally arrested is closely aligned with his allegation of an illegal search and seizure (wherein he does allege that certain articles seized as a result thereof were offered against him); consequently we deem it desirable to obtain from the trial court a determination of the question as to whether or not his arrest was, in fact, illegal, and, if so, were any "fruits" of the arrest used against him. We also deem it desirable for the trial court to determine whether or not there was an illegal search for and seizure of any articles used against him at his trial. Edwards v. Warden, 232 Md. 667; Gans v. Warden, 233 Md. 626, and cases therein cited.

For the reasons stated by Judge Harris, the applicant is not entitled to post conviction relief for any reasons asserted in the third, fourth, fifth, seventh, eighth, ninth, tenth and eleventh contentions.

Leave to appeal granted, and case remanded for further proceedings as to contentions 1, 2 and 6.