Belote v. State

Report The also calls on lawyers civility demonstrate contexts, “in respect just all not colleagues, with or in the courtroom, support but with staff and court personnel.” Final Recommendations, Report Here, at 9. con- Respondent’s duct demonstrated opposite. His refusal to work with opposing try counsel to to reach an out-of-court resolution incivility demonstrated and disrespect. time, however,

At the present much of the Report remains result, hortatory. As a we have little choice but to conclude that the evidence that Bar Counsel presented was insufficient 8.4(d). to demonstrate that Respondent violated MRPC petition for action disciplinary is dismissed.

IT IS SO ORDERED.

981A.2d1247 Antonio Gonozalez BELOTE Maryland.

STATE of 103,Sept. Term, No. 2008. Appeals Maryland.

Court of

Oct. 2009. Burns, Jr., (Nancy Defender S. Asst. Public E. George Defender), brief, Forster, on for Petitioner. Public Gansler, Williams, F. Atty. (Douglas Gen. Asst. Carrie J. brief, Gen.), Respondent. Atty. BATTAGLIA, C.J., HARRELL, BELL,

Argued before C., MURPHY, JOHN GREENE, ADKINS and ELDRIDGE (Retired, JJ. specially assigned),

BELL, C.J. Introduction

I. “The it best: said The late Professor Charles Whitebread a difficult one.” an arrest of what constitutes question Whitebread, Analysis An Criminal Procedure: H. Charles of Constitutional Cases and Concepts (The § 3.02 at 61 Founda- Press, 1980). Indeed, tion Inc. one “[o]n end the spectrum, it seems apparent that accompanied detention by handcuffing, guns drawn or words to the effect that one is under arrest qualifies as an ‘arrest’ and thus requires probable cause. At end, the other a simple questioning on the street will often not rise to the level of an arrest.” gives This case substance to cogent observation. 21, On night July 2006,1 the Salisbury Police Officer James D. Russell approached Belote, Antonio Gonozalez the petitioner, marijuana, smelled conducted a Terry frisk, searched petitioner’s pockets. Officer Russell’s search revealed that petitioner possessed marijuana. Instead of taking petitioner custody into and immediately transport- station, him ing to the Officer Russell let the petitioner go. It was not until October more than two months later, that the petitioner was taken into custody. This Court issued a Writ of Certiorari to the Court of Special Appeals, Belote 442, (2008), 959 A.2d 792 to consider whether, as the trial court found and the Court of Special Appeals affirmed, Officer Russell's search of petitioner the night July 21, 2006 was incident to a custodial arrest.2 hold,

We shall based on our interpretation objective of his conduct and apparent intent, subjective that Officer Russell never made a custodial arrest petitioner. Therefore, of the we also shall hold that the trial court erred in finding otherwise and, accordingly, that seized from the petition- er’s pockets should have Ohio, been suppressed. See Mapp v. 643, U.S. (1961); S.Ct. 6 L.Ed.2d 1081 Weeks v. States, United 232 U.S. 34 S.Ct. (1914); 58 L.Ed. 652 brief, petitioner, 1. The in his states that his encounter with Officer July Russell occurred on A 2007. review of the Docket Entries year Indeed, reveals actually that the of the encounter was 2006. charging petitioner Criminal Information is dated October 2006. question, phrased by 2. The petitioner as in his Petition for Certiora- ri, was: concluding did the lower illegal courts err in that an frisk justified by could subsequently deciding be it was an arrest? (2007); State 399 Md. v. Longshore (2004). Nieves, 573, 861 A.2d 62 History II. Facts/Procedural James D. Officer July on p.m. approximately

At and a Underwood Officer David Russell, accompanied Office, on Attorney’s was from the State’s representative a of County, part in Wicomico near Baker Street bicycle patrol drug transactions open-air known for that was neighborhood Also shootings. spate of a had been the site recently other, location, next to each porch on a seated at that present Underwood, were Kevin Russell and by Officers and observed there Belote, Believing petitioner. and Antonio Lacato Lacato, officers for Mr. outstanding warrant so, smelled him, but, Officer Russell they as did approached Turning his focus petitioner. from the emanating marijuana then occurred: related what Officer Russell petitioner, to the Belote, anything if he had I asked Mr. “[Officer Russell]: He that he stated him I needed to know about. extremely him, the odor was I closer to nothing. got As weapons. I him down strong. petitioner] [the patted had, he went from a so, I that he when doing could see in his bulge he had a you could see that position, seated bulge I there was a could see that up. He stood pocket. stronger marijuana became even and the odor of pocket his from bag he I removed when stood. marijua- wrapped bags individually six containing pocket, na. contact? previous defendant from Did know this

“[Q]: you Yes, contacts previous I have had several Russell]: “[Officer contacts, I him to be a know Based on those with him. activity. involved CDS person to be frequent to arrest you going decide were point, you did “[Q]: At what the defendant? recovering At the conclusion after Russell]:

“[Officer purposes on him. For the weapons had no marijuana, he bicycle that I was on able patrol transport and not him department back to the police project and the exile he had no weapons, cooperative he was me. I with seized the marijuana completed an application charges at a later date.” cross-examination, testified,

On Officer Russell in relevant part, to the following:

“[Q]: locating marijuana in Mr. Upon Belote’s pocket, you fact, would that’s agree you, when him placed under arrest? I him placed

“[Officer Russell]: never petitioner] [the under arrest. .

“[Q]: You never arrested him? I completed application

“[Officer Russell]: of charges. When, “[Q]: if know? you I believe it approximately

“[Officer Russell]: was a month or two I months later. couldn’t them type up immediate- ly than hand, because later I broke night my my [sic] right right-handed. hand. I’m “[Q] you agree you So would never arrested him that evening? No, I

“[Officer Russell]: did not arrest him.” petitioner The taken into custody, pursuant to an arrest warrant, 12, 2006, on October more than months his after encounter with charge, Officer Russell. The Possession with however, the Intent Marijuana, to Distribute was based on the July filed, detention and The petitioner search. in the Circuit County, Court for Suppress Wicomico Motion to the mari- search, juana seized as a of the July arguing result both that Officer Russell lacked either a factual basis to justify the Terry3 frisk of or person probable his cause to him. The motions court Although denied motion. it also held Terry that Officer lacked a Russell valid basis for conducting a frisk of petitioner, the court concluded that Officer Rus- Ohio, (1968). Terry 3. See 392 U.S. 88 S.Ct. 20 L.Ed.2d

Ill July pockets evening on the petitioner’s search of the sell’s court to a lawful arrest. motions was incident for a probable cause Russell] reasoned that “he [Officer the raw at the time he smelled search and arrest not made until fact that the arrest was consequently validity no on the of the search. bearing later” had Guilty Agreed to trial on a Not The petitioner proceeded guilty. he was found surprisingly, Not Statement Facts.4 with all but years’ five imprisonment, He was sentenced to twenty-four months suspended placed months eighteen from upon imprisonment. his release probation, unreported in an Appeals, opinion, Special The Court of by rendered the trial of conviction judgment affirmed court, the petitioner appellate court. Before the intermediate to court’s denial of his challenges two the motion legal raised First, of that “the smell argued he Suppress. Motion petitioner’s] bulge [the of a his presence and the and, thus, probable did cause Officer not constitute pocket” He petitioner. cause probable Russell lacked evening July not on the argued also he was “arrested” that 21, and, that revealed the consequently, 2006 the search incident to lawful custodial arrest. marijuana was not maintained that support argument, petitioner the latter months his “arrest” not occur until two approximately did later, custody brought when was taken into he station under an arrest warrant.

The with the court’s Special Appeals agreed Court of motion probable cause to determination that Officer Russell petitioner smelling marijuana. arrest the after intermedi- subsequent Officer Russell’s appellate ate court concluded that 369, 8, 915, State, A.2d n. 8 See Walker 406 Md. 384 n. 958 923 4. v. 199, 3, State, (2008) (noting v. Md. 203 n. 627 A.2d that in Atkinson 331 1019, (1993), Agreed explained Court an 1021 3 this Statement n. by stipulation no essentially is a trial in which live witnesses of Facts State, 753, 759, called); Ingersoll Md.App. v. 501 A.2d also 65 are see 1373, (1986) (explaining agreed statement of facts elimi- 1376 engage finding). in fact nates need to 112

detention of the petitioner consummated the petitioner’s ar- rest:

“While not formally taken to the station at the time of his Belote was not free to leave. The standards State, Bouldin established [v. 511, 276 350 A.2d 130 (1976) indicate ] that an arrest has if occurred the suspect is detained, physically subject to the officer, control of the or consents to be arrested. Officer Russell completed two of possible three ways to effectuate an arrest when he detained Belote putting his hands on him and conduct ing a search his body.”[5] (Emphasis added and italics omitted).

III. Legal Analysis search

“[A] conducted without a warrant supported by probable cause is per se unreasonable under the Fourth Amendment, subject to only a few exceptions.” Cherry State, 234, 86 Md.App. 240, (1991) 70, 586 A.2d citing Bustamonte, Schneckloth v. 412 U.S. 2041, 93 S.Ct. 2043, 854, (1973); L.Ed.2d Everhart v.

459, 474-75, 100, 109 (1975). One of those exceptions is that of a search incident to a lawful custodial arrest. Robinson, United States v. U.S. 94 S.Ct. (1973); 38 L.Ed.2d Chimel v. California, 5. Both the trial court appellate and the intermediate rely court seem to physical on the contact between Officer petitioner Russell and the during Terry was, finding frisk as the basis petitioner for that the or been, "arrested." Officer Russell suppression testified at the that, hearing after Terry he conducted his frisk and failed to discover weapons petitioner, bulge on the petitioner's he saw a pocket in the and simply bag marijuana” then, "removed the Essentially, from it. it was Officer petitioner Russell's during contact with the Terry stop a and frisk that the trial court determined was invalid that formed the basis petitioner. for arrest of the The trial court’s treatment of Officer petitioner Russell’s contact with the question raises the on which we granted police certiorari: can a during officer’s contact an invalidated Terrystop alternatively be used justifying as the contact for an "arrest?” Indeed, We hold that it cannot. open this would the door to the possibility every Terry stop, that even when the pursu frisk conducted court, ant to it by has been invalidated a motions somehow could be the finding basis for that an "arrest” occurred.

113 (1969); 685, 2038, 692 2034, 23 L.Ed.2d 759, 752, 89 S.Ct. U.S. (1965); 632, 638 State, 149, 158, A.2d 207 238 Md. McChan v. (1964). 808, 814 State, 429, 440, A.2d 201 v. 235 Md. Gross ability of that underlie rationales primary two There are custodial to a lawful incident arrestee to search an be might arrestee (1) from the weapons to seize arrest: officers; enforcement to harm law or escape to effect an used destroyed be might (2) evidence to recover 476, 38 Robinson, 234, 94 at at S.Ct. 414 U.S. arrestee. States, 269 U.S. v. United (citing Agnello at 439-40 L.Ed.2d Chimel, 764, (1925)); 395 U.S. at 4, 145 20, 70 L.Ed. 46 S.Ct. Preston v. (1969) (quoting 2040, 23 L.Ed.2d at 694 at 89 S.Ct. 881, 883, 11 L.Ed.2d States, 367, 364, 84 S.Ct. United 376 U.S. State, 447, 458-62, 788 Carter v. (1964)); 367 777, State, 605, 612, Clair v. Md.App. St. 646, (2002); 652-54 A.2d (1967). form the two rationales 565, 569 these A.2d While a custodial incident to searching an arrestee foundation a that the fact of arrest, it clear Court has made Supreme to permit to alone is sufficient custodial arrest Robinson, 235, at at 94 S.Ct. U.S. arrestee. search the Florida, 260, v. 441; 414 U.S. 38 L.Ed.2d Gustafson (1973). 488, 492, 38 L.Ed.2d 94 S.Ct. however, arrest, these there is no custodial Where not to an arrest do incident rationales for search underlying has been that he An who does not believe exist. individual the police or to harm escape need to effect an arrested has no Moreover, an individual who him. has detained officer that little or no need arrested has that he has been does not believe destroy and, thus, will not certainly almost evidence destroy Therefore, might possession. be his evidence that authority” purpose objective officer’s “manifestation conduct, arrest,” signal which by words or “moment of be, always will or she is under an individual that he whether a custodial been, determining significant has Exception An Logan, A. Maryland. Wayne has occurred Incident Authority to Search a Rule: Police Swallows see (2001); Arrest, Rev. 431-32 Pol’y L. & 19 Yale (1976); Bouldin 114 Crutcher,

see also State v. 295, (Tenn.1999) 989 S.W.2d 302 (holding that in order for there to be a custodial law enforcement must take some action that would indicate to a reasonable person that he or arrest); she is under Rollin M. Arrest, Perkins, The Law 201, (1940). 25 Iowa L.Rev. 248 words, In other and contrary to here, the State’s position fact that a police officer conducts a Terry stop and has probable cause, more, without is not give sufficient to rise to a custodial arrest. Cain, Balt. & Ohio R.R.

In Co. v. 101-02, 81 Md. 31 A. (1895) Strube, Balt. & Ohio R.R. Co. v. (1909), 73 A. this Court developed “work- ing definition of arrest —the detention of a known or suspected offender for the purpose him prosecuting for a crime.” Cornish v. 64, 67-68, (1957). Bouldin, 515-16, Md. at 350 A.2d at we articulated the prerequisites for a custodial arrest in Maryland:

“It is generally recognized that an arrest is the taking, (1) or seizing, detaining of person by another touching (2) him; or putting hands on byor any act that indicates an intention to take him into custody and that subjects him to the actual control and will of the person making arrest; (3) or by the consent of the person to be arrested. It is said that four elements must ordinarily coalesce to constitute a (1) legal (2) arrest: arrest; intent under a real or (3) pretended authority; accompanied by a seizure or deten- (4) tion of the person; which is understood person arrested. have

“We defined an arrest in general terms as the deten- tion of a known or suspected offender for the purpose of prosecuting him for a crime. clear, Our cases make as McChan states, in ordinary circumstances ‘there is a only detention when there is a touching by the arrestor or when the arrestee is told that he is under arrest submits there [but][w]here is no touching, the intention of the arrestor and the understanding of the arrestee are determinative, for in order for there to be an arrest in such case, there always must be an intent on the part of one to of such other part and an intent on arrest the other therefore, be no arrest there can Ordinarily, submit.’ sought person or where the there is no restraint where At least any restraint. one arrested not conscious be cannot be person an unconscious has concluded that court Fisher, But, in as indicated to a arrest. subjected valid (1967), Arrest, IV, only at 52 it is where chapter Laws of the arrested that person manual seizure of there is no actual controlling understanding impor- assumes his intention or omitted). (Citations tance.” and italics Bouldin, personal whether we had to determine Bouldin, been searched Franklin appellant, effects of the at 131. arrest. Id. at incident to his custodial accident, found Bouldin, motorcycle in a was injured who was Id. Baltimore in the street a semiconscious state. lying noticed, Aston, scene, Officer, City Police Donald while at 512-13, street, at flight bag, in the a small id. lying also 131, which, Bouldin, in the ambu- being placed A.2d at before lance, requested give an ambulance attendant to retrieve 513, 350 A.2d at 131. The ambulance attendant to him. Id. at When, during investigation, did so. his Officer Aston discov- motorcycle the license of the Bouldin was plates ered that stolen, driving reported motorcycle’s had been and that the defaced, number had been which is a misdemeanor serial “to check on ... Maryland, proceeded hospital he to the place and to him under arrest.” condition [Bouldin’s] condition when Bouldin was on a stretcher an unconscious Id. Officer Aston locat- hospital. Officer Aston arrived at the the stretcher and took them to clothing ed Bouldin’s beneath Bouldin’s driver’s license. Id. adjoining room to check for through jacket, Bouldin’s he discovered searching While Boul- heroin. Officer Aston then searched glassine bags glassine contained over 324 additional flight bag, din’s which 24- heroin. Aston then Bouldin under a bags placed Officer Id. at 350 A.2d at 131-32. guard hospital. hour at the uncovered suppress Bouldin moved to the heroin search, not belongings the search of his was arguing Id.

incident to his arrest. 350 A.2d at 132. Bouldin asserted that intent, Officer Aston’s subjective actions and upon arriving at the hospital, were consistent establishing with Bouldin’s not Id. identity, making a custodial arrest. Moreover, 350 A.2d at 133. Bouldin maintained that a custo dial only place took when Officer Aston him placed under an around the police guard, clock which occurred after Officer Id. Aston searched his belongings. on the hand, argued other the unconscious Bouldin placed under arrest when Officer Aston came into visual contact with him at the and that hospital subjective Officer Aston’s intent alone dispositive of the issue of whether Bouldin was Id. at custodially arrested. 350 A.2d at 134. The State reasoned that it would have been meaningless and unneces sary Aston, so, Officer who had probable cause to do to tell the unconscious Bouldin that he was under arrest. Id. This Court not agree. did held that We the search of Bouldin’s belongings was not incident to a custodial arrest. Id. at 519- 20, 350 A.2d at 135.

In support of this holding, explained we that an Maryland “(1) ordinarily requires four elements to coalesce: (2) arrest; an intent under a real or pretended authority; (3) accompanied by a seizure or detention person; of the (4) which is understood Id. person arrested.” 350 A.2d at C.J.S. Arrest (citing (1975)); § 6A Long shore v. (2007). 1129, 1137-38 924 A.2d We reasoned that Officer Aston lacked the subjective intent to arrest Bouldin demonstrate, and failed to in his conduct or words, any objective acts that would reflect an intention to perform a custodial arrest of the unconscious Bouldin. Boul din, 276 Md. at 350 A.2d at 134. In concluding that Bouldin was not arrested at the time that Officer Aston searched his belongings, emphasized we that Officer Aston’s to, immediately prior conduct with, and contemporaneously the search did not resemble kind of conduct that indicated an intent Id. 518-19, make a custodial arrest. fact, noted, at 134. In we Officer Aston “said nothing and did nothing searching before clothing Bouldin’s to indicate to care and movements in control of Bouldin’s medical anyone was under arrest.” that Bouldin Bouldin, custodial arrest approached In we conduct and by reviewing objective Officer Aston’s question Id. The Bouldin court’s analysis estab subjective intent. that, objective unambig officer’s conduct lished where a a uously reflects an intent to make custodial four intent is one of the elements subjective inquiry, which to determine whether a custodial arrest occurred reviewed Bouldin, words, significance. takes on less other under conduct, objective provides which arresting when an officer’s intent, is unam insight subjective into that officer’s significant significant weight not allocate to an biguous, courts need subjective partially officer’s intent that is revealed the form testimony suppression hearing; of his at the officer’s conduct, effect, subjective will made his objective have only objective intent clear. It is when an officer’s arresting subjective that his or ambiguous conduct is her intent increas in importance legal inquiry es to a court’s into whether a occurred. The Bouldin court’s custodial arrest of suspect subjective focus on Aston’s intent was a direct result of Officer the fact Aston did in or engage that Officer not demonstrate any objective making conduct that indicated that he was custodial arrest of the unconscious Bouldin:

“That Bouldin was under arrest at the time of the search of jacket the is not reflected the record us. before There Aston, immediately prior was no evidence that to or contem- poraneously jacket, with the search the had taken Boul- custody. nothing nothing din into He said and did before in searching clothing anyone Bouldin’s to indicate to control of Bouldin’s medical care and that Bouldin was movements Indeed, no Bouldin under arrest. there was evidence that subject any was to Aston’s dominion earlier than physical the guard posted subsequent when was to the seizure of the flight bag. testimony heroin from the While the at trial is to the time of capable differing interpretations as actual only interpretation supportive prior of an arrest jacket to the of the solely search is based on Aston’s claimed subjective intention that he went to the hospital to arrest Bouldin. It is true that during course of the trial Aston responded affirmatively question to the whether Bouldin ‘subsequently placed was under but this response arrest/ does not establish whether the prior arrest was made to or after the jacket flight bag, search nor does it give any indication how Aston effected the signifi- arrest. More point cant and to the was Aston’s testimony that he did not arrest Bouldin upon arriving hospital because Bouldin was unconscious and he could not communicate with him.” Id. 518-19, Bouldin was unusual Certainly, 350 A.2d 130. perspective from factual in that the target alleged of the custodial arrest was unconscious. anomaly, This factual how- ever, does not Bouldin decision’s marginalize analytical significance to the law of arrest in Maryland. Bouldin

The definition of arrest that we in articulated to all in See Barnhard v. applies Maryland. custodial arrests State, (1992) 602, 611, 325 Md. 602 A.2d (indicating Bouldin, that under the law of articulated appellant was not under arrest when law enforcement simply appellant advised the that he would be taken if custody into he State, Little v. himself); identify 485, 509-10, failed to 300 Md. (1984) Bouldin for (citing 479 A.2d law of arrest determining constitutionality of police roadblocks to detect - drivers). drunk An objective officer’s conduct frequently is whether, sole indicia from which courts can determine purposes analysis, of search incident an individual has been State, arrested. Dixon v. 654, 673, 133 Md.App. 758 A.2d (2000) (holding that defendant was arrested when in, removed, handcuffed). his car was blocked he was and then See, State, e.g., Grier

(1998) (holding the defendant was under arrest when he put ground”). “on the

Our decision Morton v. 397 A.2d 1385 Morton, (1979) this Court was asked to instructive. determine whether a personal search the defendant’s Id. 528, belongings was incident to his arrest. 397 A.2d at 1387. The faets were that Officer Rice received “information” pharmacist Morton, from a that Percy the appellant, was involved in an robbery armed of a cabdriver that occurred the 527-528, previous night. Id. at 397 A.2d at 1386-87. Acting “information,” on this uncorroborated he stopped and frisked Morton, who, time, at the a and wearing jacket black carrying plastic bag. Id. at 397 A.2d at 1387. That nothing, encounter revealed so Morton was allowed to go way. his Id. Subsequently, Officer Rice obtained new “infor- mation” from officer, another law enforcement that Morton actually might be wanted. Having kept Morton under observation, accosted him neighborhood at a recre- center, ation and him confronted with the possibility that he was wanted. At that time Morton was not wearing jacket or carrying plastic bag. Id. Officer Rice told Morton to him accompany bring jacket him, and to bag and with response to which Morton advised that his cousin had left the recreation center with those items. Id. Aware that the re- ports from the surveillance teams monitoring the recreation center indicated arrival, that no one had left since Morton’s Officer Rice left Morton in a patrol car with another officer and returned to the recreation center to search jacket for the bag. Id. at 397 A.2d jacket at 1387. The bag were found in a different room from that which Morton had found, been “away from everybody” 528-29, else. Id. at A.2d at 1387. jacket and bag Officer Rice found a handgun marijuana. Id. at 397 A.2d at 1388.

In reversing conviction, Morton’s we reviewed the law of Maryland. In particular, we reaffirmed our adher- Bouldin, ence to reiterating that an arrest taking, is the seizing or detaining another, alia, of the person inter any act that indicates an intention to take him [the arrestee] into custody subjects and that him to the actual control and will of the person making arrest. Id. at 397 A.2d at (citing 511, 515-16, Bouldin v. (1976)). We concluded “arrested,” that Morton was cause, albeit without probable when he was “removed from the recreation center and ... placed under guard in the patrol

120 Thus, Morton, 530, A.2d at 1388. we 284 Md. at 397 car.” objective an intent to stated, manifested Rice’s conduct Officer Morton, and, indeed, Rice’s placement Officer “arrest” consent, his guard under without patrol in the car Morton And, we of Morton. were a seizure or detention constituted made his intention to clear, objective conduct Officer Rice’s unequivocal. Morton from the denial of a reviewing appeal an When evidence, only looks appellate court to suppress motion suppression hearing. at the presented that was the evidence (2008); State, 393, 33, 44, 399 v. 962 A.2d Jones 407 State, 519, (2000); 272, 282, 525 v. 753 A.2d Cartnail 359 Md. 162, State, 716, 6, A.2d v. 727 n. 968 Sparkman Md.App. 184 State, 444, 455, A.2d Smith v. (2009); Md.App. 957 182 168 State, 1, 7, 828 v. Sellman 1139, (2008); Md.App. 152 1145 (2003). the evidence 803, reviewing court views A.2d 807 and defers prevailing party to the light in the most favorable factual to its first level respect court with motions State, 486, 498, 1129, v. A.2d findings. Longshore 399 Md. 924 (2007) defers to the appellate that an court (stating 1135 particu of a regarding the facts hearing judge’s determination Nieves, 573, 581-82, v. case); 861 A.2d 67 State 383 Md. lar Rucker, v. (2004) 821 see also State (same); Sellman, at (2003); Md.App. at 828 A.2d A.2d was a determination of whether there 811. The ultimate violation, however, determina independent is an constitutional alone, applying court appellate is made tion case. Carter in particular to the facts found each law Sellman, (2002); Md, 447, 457, 828 A.2d at 811. Md.App. did not petitioner with the Russell’s encounter

Officer a arrest of perform intent to custodial objectively manifest an testified, part, Russell relevant Officer petitioner. hearing: suppression identifying Kevin Lacato we were Russell]: While “[Officer back, I smelled an odor the warrant to come waiting Belote, I asked Mr. from Mr. Belote. marijuana coming if he had him anything on I needed to know about. He him, stated he I nothing. got As closer to the odor I extremely strong. him patted down for weapons. so, had, doing I could he see that when he went from a seated position, you could see that he had huge bulge his pocket. He stood I could up. see that there was a bulge the pocket and the odor of became even stronger when he I bag stood. removed the of marijuana from pocket, his containing six individually wrapped bags of marijuana.” retrieving

After from the petitioner’s pocket, Officer Russell petitioner allowed the to continue on his way. The record does not indicate whether put Officer Russell petitioner in handcuffs or told him that he was “under arr est.”6 Nor does the record reveal petitioner’s identification or address was obtained or for verified later contact. Officer ambiguous Russell’s conduct on the night of 21, July 2006 did not objective resemble the conduct that we contemplated as being sufficient to consummate a custodial in Bouldin.7 arrest

6. We reiterate that it responsibility is the State’s to "insure that there evidence, exists, will be any placed sufficient if justify in the record to the execution of a warrantless search incident to a lawful arrest.” (1974). Howell v. 271 Md. 318 A.2d position enforcement, 7. The State’s in this case is that law in order to arrest, effect a only probable custodial needs cause and detention of the suspect; any subsequent by conduct the officer is irrelevant to the fact, inquiry. In question the State asserts that the "sole before this Court [is] whether the initial detention [is] arrest sufficient to justify subsequent search as incident to that arrest.” If this Court view, adopt were to every Terry the State’s stop would be a custodial arrest, assuming probable that the cause hurdle could be satisfied. This simply Bouldin, cannot be the case under "arresting because an offi- any cer” would not need to have intent whatsoever to execute a Thus, intent, subjective custodial arrest. objective, both to effect a custodial becomes irrelevant under the State's view and com- elements, pletely negates Bouldin, the first of the four as articulated in necessary give rise to recognize a custodial arrest. We that our holding today portions is inconsistent with certain of our decision in Evans, (1999), and, State v. 723 A.2d 423 to the extent inconsistent, that it is hereby Evans is overruled. mate assertions, instant case is to the State’s Contrary Evans, that of State different from rially 310, 145 denied, 833, 120 S.Ct. cert. (1999), 528 U.S. A.2d 423 Evans, State cases, (1999). considered two we L.Ed.2d Sykes-Bey, which were consolidated and State v. v. Evans were cases, that the defendants we held In both our review. sepa two drug purchases following undercover “arrested” Id. City Department. Police Baltimore forces of the rate task in both cases was 424. The issue 499, 723 A.2d at Md. at law. Maryland under arrested were the defendants whether officer An undercover at 424. Id. 723 A.2d Evans on Monu Dwight from of cocaine “dime[ ]” purchased at 425. City. Id. in Baltimore ment Street de transmitted a officer the undercover the purchase, After composed team” nearby “identification Evans to a scription of the task force Members of task force members. the undercover officer Evans until and detained stopped him the the one that sold Evans was to confirm that able right that the officer confirmed After the undercover cocaine. detained, members then the task force had been individual him, address and Evans, verified his photographed searched 502, 425-26. This was Id. at 723 A.2d at him. released then to drug dealers potential other alerting in to avoid done order to the transported not Evans was operations. force’s the task not taken a crime and stationhouse, formally charged with not 502, Id. at processing. for Commissioner to the District Court the task one month after 426. Approximately at 723 A.2d Evans neighborhood, operations completed force had individuals that sweep” of a “mass part arrested as was under as a result of its caught previously the task force 500, 425. Id. at 723 A.2d at cover operation. under- case, approached Sykes-Bey

In the other Charles cocaine from one buying engaged was cover officer who 504, at 426-27. Id. competitors. Sykes-Bey’s he had “two whether Sykes-Bey officer asked The undercover 427, 504, which id. cocaine, 723 A.2d at worth of dimes” meaning larger only “weight,” that he sold Sykes-Bey replied quantities pur- of cocaine. Id. undercover officer then Sykes-Bey’s competi- chased two dimes crack cocaine from cocaine, tor. purchasing Id. After crack the undercover officer description Sykes-Bey transmitted a of both and man from he purchased whom had cocaine. Id. Before detain- ing Sykes-Bey, an on Sykes- officer the task force witnessed Bey money 505, receive from an unidentified woman. Id. at 723 A.2d at 427. After receiving money, Sykes-Bey store, walked to the side of a his placed hand behind a billboard building that was attached and retrieved an unidentified amount of n. cocaine. at 505 723 A.2d at transaction, witnessing n. 6. Soon after this the task force Sykes-Bey detained and discovered eleven vials of cocaine from behind the billboard that visited Sykes-Bey after receiv- ing money from the unidentified woman. Id. at A.2d at 427. Members of the stopped task-force and detained Evans, Sykes-Bey, as ascertaining identity, his address birth Id. at They date. 723 A.2d at 427. also searched Sykes-Bey, seizing him, in currency from photo- $134 graphed him. also Sykes-Bey was released until the “mass sweep” that took one place over month later. Id. at 723 A.2d at 426-27.

Both Evans Sykes-Bey filed Sup Motions to press, arguing that the evidence obtained the task forces had been unlawfully seized they because had not been arrest 502-503, 505, ed. Id. at 723 A.2d at 427. con Evans ceded that there had been probable cause for his arrest day incident, of the he argued but did not arrest him under Maryland law. Id. at 723 A.2d at 429. Sykes-Bey’s argument was identical He too Evans’s. reasoned that there no the where did not transport him to the stationhouse or immediately commence process. 509-10, the charging Id. at 723 A.2d at Accord 429. ing to not, both Evans and Sykes-Bey, they were “arrested” until the sweeps mass that occurred the task after forces had operations ceased their the neighborhood which, in in both 124

cases, buys.8 after the undercover over one month was well Evans, the Bouldin test for we

In citing after the statement that followed: disavowed deten- general an arrest in terms as the have defined “We of suspected purpose tion known or offender (Italics him for and citations omit- a crime.” prosecuting ted). Evans, (1999) v. A.2d

State 511, 515-16, 350 A.2d (quoting Bouldin (1976)). disavowed, that As to we we said language Bouldin and in its “[notwithstanding gratuitous language this since, Maryland cases this Court in a number of incantation held that a in of the Maryland requires arrest has never valid for the prosecute arrestee arresting officer intent Id. 513-14, to have been committed.” crime believed (Italics in and We emphasis original). A.2d at 431 omitted ordinarily law has no also that a enforcement official noted at 514 n. authority prosecute arrestees. n. an “arrest” occurred addressing 14. whether

Evans, taken the task focused our on the actions inquiry we with, follow- immediately or contemporaneous force members Indeed, we care ing, the of the defendants. took search these after employed that task forces procedures outline the Sykes-Bey: detaining Evans stopping investigation proce- “In accordance with the undercover cases, the of the ‘identifica- dures in these members ability holding today of the to conduct 8. Our does not affect Thus, operations, those in Evans. task task force such as conducted sweeps” "mass after a arrest operations force that conduct custodial Maryland. simply are We made clear what was and still valid arrests, Evans, regarded implicit between the task that custodial as arrestee, accompanied by objective that force must be conduct police to an individual and call him the intention of the indicates activity at date. or her for his or her criminal some future to task petitioner's was no custodial arrest in Although we hold there not, case, than two need and will not decide whether more we alleged petitioner delay and the month between the "arrest” of booking process exceeds constitutional commencement formal question must await another case. bounds. Resolution teams,’ cause, acting upon probable tion physically both restrained Evans and and of Sykes-Bey subjected each to police custody them their and control. In the of case Evans, the him police stopped as suspect required a and him to produce identification. he to When was unable identification, produce satisfactory police the held Evans for significant length a of time until his father could adequately identify him. During period, police that time the searched Evans, while photographed filling also out an identifica- Respondent tion form. Sykes-Bey was treated similar by City fashion the Baltimore Police.” noted, that, at A.2d at 432. We that regard, as a of employed forces, result the procedures by these task “[i]t beyond is ... the of question that initial Respon- detentions Sykes-Bey] [Evans dents rose the of a to level either physical subjugation police restraint or a to custody and control.” Id. 723 A.2d at 432. the Essentially, identifi- procedures cation implemented by the task forces at buys scenes the undercover the arresting made officers’ subjective a perform intent custodial quite arrest clear any because ambiguity that might have been created as a result allowing Sykes-Bey Evans and to go way on their eliminated, reduced, significantly or when task forces procured Sykes-Bey’s Evans’s and contact information. judice, case sub Officer Russell’s objective conduct became without, unclear when let Mr. go he Belote at least there is no record, indication it in the detailed obtaining contact infor- mation from him on porch that evening.9 The ambiguity objective created Officer Russell’s conduct has made his subjective even significant intent more to our custodial arrest inquiry.

Officer subjective Russell’s intent to a execute custo was, best, dial arrest of Mr. Belote July Belote, 9. While Officer Russell that he testified was familiar with Mr. familiarity petitioner this with does not serve as a substitute for the procedures that task arresting forces Evans utilized when Evans Sykes-Bey. objective procedures It these engage that allow us to inquiry. in our arrest whether a officer sub- determining ambiguous. When this custodially suspect, arrest Court intended jectively also, objective but only officer’s conduct looks not whether he testimony regarding to his not dispositive, while prior contemporaneously under to or suspect placed See, Bouldin, 518-19, 350 276 Md. at e.g., his search. with case, Russell detained 134-35. In the instant Officer A.2d at his pock- searched porch subsequently Belote on the Mr. conduct, that a custodial the State asserts From this ets. conclusion, The State’s Belote had occurred. arrest of Mr. however, the fact that Officer not take into account does afterward, injecting immediately Mr. Belote Russell released objective might sufficiently otherwise be ambiguity into what Moreover, Rus- a Officer evidencing conduct custodial arrest. until charges an of complete application did not sell even As with Mr. Belote. two after his encounter nearly months Bouldin, objective an conduct in where officer’s we indicated oc- custodial arrest has ambiguous regarding is whether a curred, See Id. at subjective an officer’s intent. we look to hearing, At the Officer suppression 350 A.2d at 133. cross-examination, not arrest testified, on he did Russell July 2006: night Belote on the Mr. in locating Mr. Upon Counsel]:

“[Defense fact, you agree you, that’s when pocket, Belote’s would him under arrest? placed I him under arrest. placed never Russell]:

“[Officer never arrested him? You Counsel]: “[Defense charges. I completed application Russell]: “[Officer WTien, you if know? Counsel]: “[Defense a approximately I it month Russell]: believe was “[Officer immediately them type up later. I couldn’t or two months hand, my my right I night than broke [sic] because later I’m right-handed. hand. you never arrested agree would you Counsel]: So

“[Defense evening? him that No, him.” I did not arrest Russell]:

“[Officer not Mr. that he did Belote testimony Officer Russell’s coupled ambiguous with his night July on the conduct, persuade us objective that he never consummated of Mr. custodial arrest Belote.10

The attempt argue State’s that the instant case is similar to Evans Evans merit. key lacks distinction between Evans, that, the instant case task forces manifested their intent to arrest Evans and Sykes-Bey through their actions. For example, members of task forces photo- graphed, identified and verified the both addresses of Evans Sykes-Bey they while were they detained and before Evans, were released. 723 A.2d at Indeed, 427. procedures the identification implemented by task Evans eliminated, if mitigated, forces not potential for ambiguity might arise as a result of Evans and Sykes-Bey being being released after shortly caught by task case, forces. the instant Officer Russell did not imitate or outlined in Evans procedures and, follow the aas result, left Mr. Belote in limbo about the consequences of his possessing the contraband that the search of his person uncov- ered. Evans,

In we said that “whether the officer intends that detention lead to a prosecution has no bearing on whether an arrest has occurred.” Id. at 723 A.2d at (emphasis 431 added). statement, From this the subjec- State deduces that tive intent is irrelevant when an effecting reject arrest. We Russell, examination, cognizant 10. We are that Officer direct gave on following testimony response the question in to the State’s on whether defendant, he arrested the Mr. Belote: point, At you you going "[Prosecutor]: what did decide were to arrest the defendant? "[Officer Russell]: At the recovering marijuana, conclusion after the weapons had purposes he no bicycle on him. For the that I was on patrol transport police department and not able to him back to the project weapons, and the cooperative exile that he had no he was completed application with me. I seized the an for charges at a later date.” opinion, crossexamination, testimony our In Officer Russell’s on Belote, he which twice denied that weight he arrested Mr. carries more the, arguably, nonresponsive gave than answer that he in the above colloquy. when subjective an intent that “officer’s the State’s contention Despite is the State’s ... irrelevant.” [an arrest] performing brief, of in its our seminal decision failure even to mention (1976), A.2d believe Md. we Bouldin clarify “intent” that we prerequisite it is the important that established Bouldin. to “arrest” an individual subjective

An intent officer’s officer’s important where an the time of his encounter clearly not indicate that a custodial objective conduct does Bouldin, that when emphasized has In we been made. officer, must arresting “there touching there is no one other and part intent of to arrest the always be an on to submit.” part intent of such other an McChan, 157, 207 A.2d at 638 238 Md. at (quoting A.2d at 133 referred, (1965)). “intent,” court to which the Bouldin an prosecute officer’s intention to to do with an nothing noted, law enforcement fact, previously as individual. any authority to do not have Maryland ordinarily officers arrested, by constitution they that have since those prosecute Attorney with the power prosecution rests provision, al V, General, Attorney, § Art. see Md. Const. State’s see V, Prosecutor, Mary § 9 and the State see Const. Art. (2004 9-1207 § § 9-1202 to Supp.) Repl.Vol., land Code what simply Article.11 Evans stated the State Government officers always Maryland under law: has been clear quite It would be power prosecution. generally lack have require courts to Maryland perverse Maryland act law not vest does perform an intention power Attorney also to direct the General to V, 11. The has Governor Art. Md. Const. prosecute civil and criminal actions under certain § 3: “(a) Attorney General shall: commence, "(2) any prosecute civil or Investigate, or defend any of category or actions in or action or of such suits criminal suit any in Court of this or before administrative Federal Courts or bodies, part or in quasi legislative of the State agencies interested, Assembly by may law which General which the State be resolution, Governor, direct joint shall have directed or shall or the or investigated, prosecuted or defended.” commenced and to be inability in An bring charges against them. officer’s to formal however, suspect, not does mean that that officer cannot charges brought recommend to the State Prosecutor that be fact, in against the officer’s In suspect custody. that is power authority inherent that flows from a officer’s to See, (2001, e.g., Maryland make arrests. Supp.) Code Hence, § 2-102 of the Criminal Procedure Article. opin- our Bouldin, which, dicta, Evans opinion ion the same referred, courts, simply Maryland indicated that find- before ing occurred, will an “arrest” has look to an officer’s intent, objective as evidenced his conduct the form of his words, subjective mind, actions and and even his state determine whether that officer intended to take the arrestee custody subject into to his arrestee or her actual Bouldin, 515-16, control and will. 276 Md. at 350 A.2d at 133. As objective neither Officer Russell’s subjec- conduct nor his tive intent manifested an intention to effect a custodial arrest of the petitioner, we shall reverse the motions court’s denial of petitioner’s Suppress. Motion to

JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED THAT TO COURT WITH INSTRUCTIONS TO THE REVERSE JUDGMENT THE OF CIRCUIT COURT FOR WICOMICO COUNTY. TO BE COSTS PAID BY WICOMICO COUNTY. J.,

Dissenting MURPHY, Opinion by which HARRELL and ADKINS, JJ., join.

I holding that, dissent from the “Officer because Russell never made a custodial arrest of the ... petitioner^] marijuana seized from petitioner’s pockets should have suppressed.” my been opinion, because that was seized from person during his a search incident to a lawful “constitutional” Petitioner was not entitled to suppres- ground sion on the subjected that he a “custodial” arrest more than two months after the date on which the seizure occurred.1 substantially contemporaneous

1. If a “custodial” arrest ais condition precedent to the during introduction contraband seized a lawful “had that Russell I with motions court Officer agree for a arrest the time he smelled search and probable cause conse- Petitioner] from and marijuana [emanating raw made later” arrest was not until [custodial] that the quently legality of the seizure. Because not invalidate did Officer clearly believing not erroneous motions court was from emanating the odor of testimony that Russell’s testimony this “extremely strong,” person Petitioner’s cause to believe probable Russell had established that Officer these marijuana. Under possession Petitioner was at issue circumstances, why two the seizure there are reasons protection Petitioner’s Fourth Amendment did not violate intrusion. against government unreasonable I.

First, not sub- consequence it of no that Petitioner was is A until 2006. “custodial” arrest October jected a known offend- suspected when “a or “custodial” arrest occurs custody purpose into “for is detained taken er” v. for a crime.” him Cornish [or her] prosecuting (1957). 170, 172 64, 67-68, 137 The defendant who is A.2d custody regard- taken into a arrest is subjected to “custodial” turned any incriminating up during evidence is less of whether Evans, In to that arrest. State a search incident however, (1999), analyzing while a forcible applica- Amendment was to which Fourth stop search from distinguishable a which ble—a “constitutional” “custodial” arrest is arrest —this Court held a “custodial” search, suspected a controlled dan- the officer who seizes warrantless able will never be gerous under these circumstances substance (1) pending option releasing a scientific the defendant exercise the contraband, (2) upon that what suspected confirmation of the test contraband, presenting an APPLICATION FOR indeed was seized is Commissioner, who is to District Court STATEMENT OF CHARGES a warrant should be required by Md. Rule 4-212 decide whether be issued arrest or whether "a summons shall issued tire defendant’s Busy law officers —and the citizens defendant[.]” enforcement to the option. not be denied that "on the street” —should who need them valid not the or only recognized by Maryland lawful law. Id. 728 A.2d at 432. Evans, rejecting argument while that contraband pursuant

lawfully person seized to a search of the defendant’s suppressed must be if—at the time of the search —the intent (1) of conducting the officer was the search to release the (2) defendant completed, when search file charges only against the defendant if the search up turned incrimina- (3) evidence, ting any charges date, file at a much later this Court stated:

There no question is in cases these that Evans and Sykes-Bey police prior were seized to search which uncovered the evidence that Respondents sought to however, suppress. Respondents argue, and the Court of Special agreed, Appeals required part that there was of the officers an intent prosecute, to which intent did not exist the police because did not intend to formally charge either or Sykes-Bey Evans until a date much later than the initial detention and search incident thereto. Neither Ev- Sykes-Bey ans nor argues that the lacked wholly prosecute; intent to their argument solely is that the intent prosecute had to be manifested contemporaneously with the initial seizure.

We hold that for a lawful for Maryland commission a felony, police of a officer probable must have cause believe the has suspect felony committed a physically must either suspect restrain the or otherwise subject suspect custody his or her and control. We reject Respondents’ argument that failure of the to initiate charging process the formal criminal at or near the of precludes time the initial detention a valid Maryland arrest under law. This State’s law of arrest significance extends no talismanic to the act or inten- initiating tion booking process. the formal On the contrary, formally charging qua a sine non suspect a is not to a lawful arrest in Maryland.

132 Special Appeals have often Court the Court

This enforcement, such danger drug the inherent recognized upon suspicion based a reasonable investigatory stop that an drug dealing “can furnish the engaged suspect v. weapons. Simpler for dangerousness a frisk” justifying State, 22, (1990). See State v. 311, 318, 568 A.2d 25 Blackman, 299, 619, (1992); 626 94 Md.App. Aguilar v. A.2d 1170- Md.App. 88 594 (1991). held courts have likewise Myriad other person stopped frisk of a justification weapons to conduct a can di- drug trafficking flow suspected involvement See, activity the criminal itself. from the nature of rectly Rivers, (7th States v. e.g., United F.3d Robinson, (8th United States v. Cir.1997); 119 F.3d McMurray, States v. Cir.1997); F.3d United Cruz, (8th Cir.1994); 422, 424 United States 909 F.2d Anderson, (11th States Cir.1989); United F.2d Cir.1988). (3rd the who arrested each Where officers probable Had cause to beHeve the two were Respondent nor the drugs, can neither dismiss diminish trafficking we officers. not admittedly concerns those While safety house, the to the station the officers arrestees transporting investiga- in more a routine were nonetheless than engaged identification, procurement evidence tory stop. procedures and for the undercover narcotics recordation consequently placed took time to effect and operations some significant they the risk not have immedi- officers should ately fully suspect. searched each arrested valuable safety, to officer the threat evidence addition in the Even was a substantial concern instant cases. may have them- Sykes-Bey perceived Evans though they arrested were not having selves as not been because station, it indisputable to the carted off after identification was they simply been released their secured, have lost valuable evidence of would arrested, i.e. Respondents for which were crimes Wayne R. See money drugs. marked and additional (3d 1996)(A 5.2(h), § Lafave, at 99 ed. Search and Seizure search based on the need to procure evidence “is no less lawful when incident to an arrest not of a ‘custodial’ na- ture.”). The prosecution State’s of Evans and Sykes-Bey issue, for the crimes at recovery without of the marked money and additional drugs, would certainly have been Therefore, weakened significantly. because of the offi- legitimate safety cers’ concerns both for their own preservation evidence, we hold that Respondents’ searches incident valid arrests satisfied requirements of the Fourth Amendment and were constitutional. 514-15, 522-24,

Id. at 723 A.2d at 435-436. (Emphasis supplied).

Rather than overrule Evans “to the extent it is incon- sistent” bar, with the majority opinion I case at would reaffirm case, what this Court stated in that and therefore affirm the ruling of the motions court on the ground that the marijuana seized from Petitioner’s person was seized during a search incident to a valid “constitutional” upon arrest based probable cause.

II. Second, was seized during a search that complied with the requirements of Cupp v. Murphy, U.S. (1973), S.Ct. 36 L.Ed.2d 900 in which the United States Supreme Court recognized an exception to the warrant requirement for searches for “highly evanescent evidence” (1) when the facts establish “the existence of probable cause” (2) “the ready destructibility of the evidence.” Id. at 93 S.Ct. at In 2004. Washington, Commonwealth v. 449 Mass. (2007), 869 N.E.2d 605 while affirming the denial of motion to suppress incriminating evidence seized from defen- dants who were not arrested at the search, time of the the Supreme Judicial Court of Massachusetts stated:

In general, a police search or seizure must be supported warrant----However, a valid that, it is well settled obtaining make a war certain circumstances” that “exigent justified impracticable, may ... a search or seizure be rant cause____One the exigent such circumstance is by probable v. generally Cupp loss of See threat of imminent evidence. 291, 296, 2000, 36 L.Ed.2d 900 Murphy, 412 U.S. 93 S.Ct. Skea, 685, 697, (1973); Mass.App.Ct. v. Commonwealth (1984). Here, probable because there was 470 N.E.2d 385 illegal to in an participating cause arrest the defendants transaction, and crucial evidence of that transaction drug have if the had not searched immedi would been lost justified. the the defendants was ately, search of that, the The determined time the defen- judge motion probable the cause to stopped, troopers dants were trafficking agree. arrest them for cocaine. We Because the motion probable there was cause as to an arrest. The judge upheld the search one incident the were not problem analysis with this is that defendants “substantially of the or at a time arrested the time search Belton, York v. 453 U.S. contemporaneous” thereto. New (1981).... L.Ed.2d 768 101 S.Ct. correctly formally that a need judge suspect noted not be of a search incident to precise under arrest at moment arrest; may precede long the formal arrest so the search exists results of probable independent as cause search____However, and the must be search arrest still roughly contemporaneous. any may suppress affirm the denial of a motion

We case, record, ... by the this ground supported justified exigent cause and amply by probable search 291, 295-296, In Cupp Murphy, U.S. circumstances. (1973), 93 S.Ct. 36 L.Ed.2d 900 United States imminent of evidence Supreme recognized Court loss justifying circumstances a warrantless presents exigent case, gone or seizure. the defendant had search with of his strangulation in connection murder

135 292, that the undisputed 93 S.Ct. 2000. It was wife. Id. 293, to him. Id. at 93 S.Ct. probable had cause police warrant, However, a formal arrest or a 2000. without the took from protest, police scrapings over the defendant’s yielded incriminating physi- that fingernails the defendant’s 292, In upholding cal evidence. Id. at 93 S.Ct. 2000. the search, police probable the court held that because the had arrest, and under the defen- cause to because evidence if destroyed would have been lost or fingernails dant’s delayed, justified had the circumstances a limited preserve highly search “to evanescent evidence.” 296, 93 S.Ct. 2000. Court in a exception applied by Appeals

This Skea, v. carefully opinion reasoned Commonwealth (1984). There, 470 N.E.2d 385 Mass.App.Ct. for probable possession cause to arrest the defendant 689-690,

marijuana, but did not do so. Id. at 470 N.E.2d Instead, they person 385. searched the defendant’s substances, found marijuana more or other controlled package ultimately diamonds were determined be 686-687, Id. at 470 N.E.2d 385. The court stolen. observed any drugs further or other the defen- person likely destroyed dant’s would most have been lost or 691-692, before a warrant could be obtained. Id. at N.E.2d probable 385. Because there was cause to arrest “police literally and the action be ‘now or [had never’ to to] crime,” preserve the evidence id. at 470 N.E.2d 496, 505, Roaden v. quoting Kentucky, U.S. 93 S.Ct. (1973), 37 L.Ed.2d 757 upheld the court the search 697-698, under the rationale. Id. at Cupp N.E.2d 385. recognize that it possible Cupp We to read the decision narrowly more than Appeals Court did its Skea instance, opinion applying only “high- as to evidence as —for ly case, evanescent” as the in the fingernail scrapings Cupp subject which “physical dissipation.” People were Evans, 43 N.Y.2d 371 N.E.2d 400 N.Y.S.2d (1977). Yet agree we with Skea court that there is principled no reason not to the same rationale apply any to vanish before a warrant is obtained. See likely evidence Skea, 697-698, 385; supra v. 470 N.E.2d Commonwealth (4th LaFave, 5.4(b), § & Seizure at 195 ed. 3 W.R. Search 2004) (“At minimum, Cupp applied should be so as to formal arrest grounds upon when there are which a permit, made, any could have been a more extensive search in the of the reasonably possession evidence believed to be later”). be unavailable note that suspect might which We the Court for Skea Appeals the decision has been cited to presence likely the of evidence proposition justifying circumstances a warrant- exigent vanish creates upon Similarly, or seizure cause. most probable less search consider the have taken at jurisdictions question other to Cupp. of the interpretation exception least as broad an case, to present police probable In the had cause defendants, good having suspect reason just drug purchase. in an undercover they participated had reason to believe that the defendants They likewise transaction, carrying money possi- from this were now guilt. evidence of their Given the bly only physical and the fungible money general, tendency nature of money change quickly, hands this evidence would illicit immediately. if did not search never be found short, were “the officers’ choices limited two: Skea, supra search now or never.” Commonwealth frisked the Accordingly, police pat 470 N.E.2d 385. object in that turned out pocket defendant and found an his finding. This very they anticipated to be the wad of bills Cupp Skea in the just type upheld of search cases. (footnotes omitted). and some citations

869 N.E.2d at 611-614 I courts’ agree appellate interpreta- with the Massachusetts tion of Cupp. bar, the occasion at issue the case at Officer Russell’s

On “limited to search now similarly [Petitioner] choices were two: The contraband seized to that search pursuant or never.” not be suppressed. should Harrell and Adkins have authorized me to

Judge Judge they join dissenting opinion. state that this

Case Details

Case Name: Belote v. State

Court Name: Court of Appeals of Maryland

Date Published: Oct 13, 2009

Citation: 981 A.2d 1247

Docket Number: 103, September Term, 2008

Court Abbreviation: Md.