delivered the opinion of the Court.
Thе appellant Franklin Delano Bouldin was found guilty by a jury in the Criminal Court of Baltimore of possession of heroin with intent to distribute and with possessing a manufactured article (a motorcycle) from which the serial number had been removed, defaced, or obliterated; he was sentenced to 10 years’ imprisonment. In
Bouldin v. State,
The evidence adduced at the trial shоwed that Bouldin was badly injured in an accident while riding his motorcycle on the afternoon of November 22, 1973. He was lying in the street in a semiconscious condition when Officer Donald Aston arrived on the scene to investigate. Aston observed *513 that a small flight bag which had been lying in the street was returned to Bouldin at his request by an ambulance attendant, as he was being placed in the ambulance. Aston remained at the scene to investigate after the ambulance departed for the hospital. He called police headquarters to ascertain the ownership of the motorcycle and was promptly advised that the license plates had been reported stolen. Astоn thereafter observed that the serial number on the motorcycle had been defaced, a misdemeanor in violation of Maryland Code (1971 Repl. Yol.) Art. 27, § 389. He completed his investigation at the scene without ascertaining Bouldin’s identity and proceeded to the hospital “to check on . . . [Bouldin’s] condition and to place him under arrest.”
Prior to Aston’s arrival at the hospital, Bouldin had been taken to the emergency room, placed on a stretcher and all his clothing was removed. Consistent with the hospital’s policy, Bouldin’s wallet and identification cards had been taken from his clothes and placed in safekeeping.
Aston arrived at the hospital about 45 minutes аfter the accident occurred; he proceeded to the emergency room where he located Bouldin on the stretcher in an unconscious condition. lie observed that Bouldin’s clothing had been removed and that he was then being attended by a physician. While Aston was familiar with the hospital’s policy to remove persоnal effects of patients for safekeeping, he did not ask and was not told that Bouldin’s identity was known to the hospital and that his wallet had been removed from his clothing. Aston observed that Bouldin’s clothing and his flight bag were lying on a shelf beneath his stretcher; he picked up the clothing and took it into an adjoining room “to check for driver’s license or registration or something.” A search of Bouldin’s jacket revealed 20 glassine bags of heroin. Aston then removed the flight bag from the shelf beneath the stretcher and held it until narcotics officers, whom he had called, arrived at the hospital. A search of the flight bag uncovered an additional 324 glassine bags of heroin. Thereafter, Bouldin was placed under 24-hour guard at the hospital where he remained for approximately five months.
*514 At the trial, Aston was asked what he did when he arrived at the hospital “with regard to placing Mr. Bouldin under arrest.” Aston replied: “I didn’t — I didn’t tell him that because he was in no condition to carry on a conversation.” The heroin seized from Bouldin’s jacket and flight bag was admittеd into evidence over his objection that the searches were unlawful. The trial judge concluded that Aston had probable cause to arrest Bouldin without a warrant for possession of stolen license tags and for defacing the serial number on the motorcycle. The court then said:
“The officer did not go through all the formalities of the arrest because the man was being worked on on the table in the hospital, but he was for all intents and purposes under arrest in connection with these two items which the officer had found out.... My ruling is that the search of these items was proper because, first of all, it was incident to a lawful arrest; secondly, the officer had the right to try and find out аt least from the clothing some identification of the victim; and, thirdly, under the principle of Waugh vs. State,20 Md. App. 682 [318 A. 2d 204 (1974)] this black bag or satchel was the kind of object which could very well have been removed and its contents could have been destroyed and under the theory of the Waugh case the officer did have the right to go through that bag and search it under these circumstances.”
In affirming the convictions, the Court of Special Appeals disagreed with the trial court’s conclusion that the search of Bouldin’s clothing had been justified as one conducted in a medical emergency for the purpose of ascertaining identity; it said that the “absence of medical rationale” was obvious from Aston’s testimony that his express purpose for going to the hospital was to arrest Bouldin. It concluded that Aston did in fact arrest Bouldin; that due to Bouldin’s unconscious condition, strict conformity with technical prerequisites of making an arrest, such as a touching of, or verbal notification to the arrestee, was unnecessary; and that under
*515
the principles of
United States v. Robinson,
It is axiomatic that when the State seeks to justify a warrantless search incident to arrest, it must show that the arrest was lawfully made prior to the search.
Coolidge v. New Hampshire,
It is generally recognized that an arrest is the taking, seizing, or detaining of the person of another (1) by touching *516 or putting hands on him; (2) or by 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 the arrest; or (3) by the consent of the person to be arrested. 5 Am.Jur.2d Arrest § 1 (1962). It is said that four elements must ordinarily coalesce to constitute a legal arrest: (1) an intent to arrest; (2) under a real or pretended authority; (3) accompanied by a seizure or detention of the person; and (4) which is understood by the person arrested. 6A C.J.S. Arrest § 42 (1975); Creamer, The Law of Arrest, Search and Seizure, ch. 3, at 49 (1968).
We have dеfined an arrest in general terms as the detention of a known or suspected offender for the purpose of prosecuting him for a crime.
McChan v. State,
“Thus an unconscious person may be placed under arrest when his body is actually seized and restrained, even though his understanding of his plight is delayed until he recovers consciousness. *517 When his person has been taken and made subject to the disposition of the arresting officer, with intention to restrain him in custody of the law, the arrest is complete when this is done. There is sufficient understanding on the part of such a prisoner when he recovers consciousness and finds himself handcuffed, in jail, or perhaps confined to a hospital room with a policeman standing guard over him.”
Bouldin claims that Aston’s subjective intent and objective actions upon arriving at the hospital were consistent with his purpose to establish identity and not to make a custodial arrest. He contends that the record fails to disclose that Aston remained in his presence in the hospital or arranged for a guard before conducting the searches; that at no time did Aston “outwardly manifest an arrest, either to him or to hospital personnel in control of his movements”; that to justify a search incidеnt to an arrest, the search must be “essentially contemporaneous with the arrest and that no arrest took place contemporaneously with the search of the jacket”; and that a lawful arrest took place only after the search of the jacket and flight bag when the police placed him under an around the clock police guard.
The State argues that since Bouldin was unconscious when Aston arrived at the hospital, he was not required to tell him that he was under arrest or to touch him to consummate the arrest. The State contends that when Bouldin’s condition is taken into consideration, “it would have been an exercise in futility had Officer Aston told thе unconscious appellant that he was under arrest.” The State suggests that Bouldin was placed under arrest when Aston “came into visual contact” with him at the hospital, and that Aston’s intent to arrest was alone determinative since there could not have been an intent on Bouldin’s part to submit during his unconscious state.
Assuming arguendo that Aston had prоbable cause to arrest Bouldin for misdemeanors committed in his presence, Code, Art. 27, § 594B, we cannot agree with the Court of Special Appeals that Aston’s subjective mental intention to
*518
arrest Bouldin, coupled with grounds to make the arrest, provided an adequate legal foundation upon which to arrest an unconscious pеrson under principles enunciated by the Supreme Court in
United States v.
Robinson,
supra.
Nothing in that case even remotely supports such a proposition; it dealt with the purpose of a search incident to a lawful arrest and, as correctly noted by the Court of Special Appeals in
Dixon v. State,
While we think an unconscious person can be validly arrested in some circumstances, Fisher, Laws of Arrest, supra, to consummate an arrest of such an individual, there must be an objective manifestation of acts or words unequivocally showing that an arrest is being made, that the arrestee is being detained or restrained, and his person brought within the custody and control of the law. A ritualistic touching is hardly required in such circumstances in order to effectuatе an arrest, nor is communication of the fact of arrest to an unconscious person either possible or prerequisite to a valid arrest. The principles set forth in Cornish and McChan were plainly not intended to govern detention of unconscious persons. We think that where the right to arrest an unconscious person exists, the requisite detention оf his person may be effectuated without force or without any physical restraint, so long as the acts or conduct of the arrestor sufficiently demonstrate that the arrestee is within his power or control.
That Bouldin was under arrest at the time of the search of the jacket is not reflected by the record before us. There was no еvidence that Aston, immediately prior to or contemporaneously with the search of the jacket, had taken Bouldin into custody. He said nothing and did nothing before searching Bouldin’s clothing to indicate to anyone in control *519 of Bouldin’s medical care and movements that Bouldin was under arrest. Indeed, there was no evidence that Bouldin was subject to Aston’s physical dominion any earlier than when the guard was posted subsequent to the seizure of the heroin from the jacket and flight bag. While the testimony at trial is capable of differing interpretations as to the actual time of arrest, the only interpretation supportive of an arrest prior to the search of the jaсket is based solely on Aston’s claimed subjective intention that he went to the hospital to arrest Bouldin. It is true that during the course of the trial Aston responded affirmatively to the question whether Bouldin was “subsequently placed under arrest,” but this response does not establish whether the arrest was made prior to or after the search of the jacket and flight bag, nor does it give any indication how Aston effected the arrest. More significant and to the point was Aston’s testimony that he did not arrest Bouldin upon arriving at the hospital because Bouldin was' unconscious and he could not communicate with him.
In
Howell v. State, supra,
involving a search incident to an arrest, we reversed a conviction for failure of the record to disclose, among other things, when or where the arrest was made; we said there that the court cannot fill gaps in the record with conjecture, nor substitute surmise for positive proof, and that “care should be taken by the State in presenting its case to insure that there will be sufficient evidence, if any exists, placed in the record to justify the execution of a warrantless search incident to a lawful arrest.”
While we think Judge Lowe was correct in emphasizing the element of detention in effectuating the arrest of an unconscious person, rather than the technical prerequisites to arrest articulated in Cornish and McChan, the record simply does not show the requisite pоlice restraint or control of Bouldin’s person at the time the searches were made. We emphatically reject the State’s notion that the arrest took place upon Aston’s eyeball contact with the unconscious Bouldin as he lay on the stretcher, and conclude, on the record made in this case, that the search of the jacket was *520 not incident to a valid arrest. Consequently, the heroin seized both from the jacket and flight bag was erroneously admitted into evidence over Bouldin’s objection.
In view of our conclusion, we do not reach the alternative holding of the Court of Special Appeals that the warrantless search of the flight bаg was permissible under the so-called “automobile exception” articulated in
Carroll v. United States,
Nor do we address ourselves to the holding of the Court of Special Appeals that the search of the jacket could not be justified as an emergency search for identification of the victim. The State did not file a cross-petition for certiorari to review this issue and we have not, therеfore, considered it. 1
Judgment of the Court of Special Appeals affirming the conviction of possession of heroin with intent to distribute under Criminal Information No. 27100116 reversed; case remanded to that court with directions to vacate the judgment of the Criminal Court of Baltimore and remand the case for a new trial; costs to be paid by the Mayor and City Council of Baltimore.
Notes
. Bouldin did not seek review of his conviction far violating Code, Article 27, § 389.