*1 jurisdiсtion to consider the motion for modification that appel- lant filed on May 2002.
JUDGMENT AND VACATED CASE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH OPINION; THIS BE COSTS TO PAID BY FREDERICK COUNTY.
Court Appeals Maryland.
March *4 Defender, Harris, on Amith E. Public (Stephen Adina N. Baltimore, brief), appellant. (J. Jr., General, Curran, Attorney Kelley Joseph Edward J. brief), Baltimore, for appellee. on the BARBERA, SALMON, JJ.
Panel: KRAUSER KRAUSER, Judge. alcohol, David appellant, the influence of Con-
While under a Ford van into a ditch the side of a state boy, by crashed and was equipment The van contained construction road. badly damaged alcoholic beverages. Leaving littered with lay, it fled the scene of the accident appellant vehicle where later, taxicab, in a retrieve his belongings to return only return, however, was met more equipment. and the His A had arrived and was trooper than a wrecked vehicle. state the accident. investigating cab, appellant
As the he asked trooper approached Conboy,” trooper whether he was “Mr. the man who the had reason to believe was the van at the time of the driving alcohol,1 re- reeking accident. Inebriated and “I’m David what sponded, Conboy,” thereby revealing sober reflection have him conceal—his true might helped was, appel- of how this denial identity. inculpatory Unaware lant then that his name was Mitchell Un- “George insisted think as it might son”—a less inventive choice than one brother, whose reac- belonged appellant’s step apparently gone tion to this choiсe has unrecorded. undisputed suppress the time of the It at the motion to that at issue, appellant, trooper, “appeared in the words of the search strong trooper odor of an alcohol- intoxicated” and that the “detected coming beverage person.” ic from his breath and *5 cab, in the which would a rifle the backseat of
Observing loaded, the asked to trooper appellant step later turn out to be did, him patted out of the cab. the down for trooper When in back key appellant’s pocket, weapons. Upon feeling and retrieved what would pocket reached into trooper That, turn, key to be the to the van. led ultimately prove in fact been to volunteer that he was drunk and had appellant the driver of the van. driving with while
Appellant
subsequently
charged
was
influence of alcohol and numerous other
traffic
under
exclude evidence of the
and his
key
violations.2
Seeking
statement,
in the
suppress
he filed a motion to
Circuit Court
reached
County, claiming
trooper
that when
Worcester
exceeded the
key
trooper
into his
to retrieve
pocket
Terry3 stop
ensuing
bounds of a
that his
permissible
obtained in violation of the Fifth
statement was
inculpatory
denied,
motion
was
appellant
Amendment. When that
was
facts
agreed
tried
an
statement of
and convicted
upon
alcohol.
while under the influence of
driving
charged
violating
following
Appellant
with
13 sections of the
Transportation Article:
l-902(a)(l): Driving
under the influenсe of alcohol.
Section
21-902(a)(2):
per
Driving
of alcohol
se.
Section
under the influence
21-902(b): Driving
impaired by
while
alcohol.
Section
20-103(b):
of an
Section
Failure to return to and remain at
scene
involving attended vehicle.
accident
(d):
property damage
Failure of driver in
accident
Section 20-104
report
police.
to nearest
16-303(c): Driving
suspended
on
license.
Section
16-303(d): Driving on a revoked license.
Section
16-112(c):
display
Failure to
license on demand.
Section:
16-112(e):
giving
Vehicle driver
a false and fictitious name
Section
police.
to uniformed
13-411(g):
registration plate
Displaying
issued to another.
Section
13-409(b):
registration
display
card on demand.
Section
Failure to
14-107(f): Knowingly possessing
with remove identi-
vehicle
Section
fication, as the van’s VIN had been removed.
13-401(b):
unregistered
Operating an
motor vehicle.
Section
one,
prosequi
all
but
But the State entered a nolle
21-902(a)
as to
offenses
D.U.I.,
charge upon
which
was tried
convicted.
Ohio,
Terry
SUPPRESSION MOTION evidence only presented at the suppression hearing was witness, testimony State Trooper David Grinnan of the Maryland that, 28, 2002, State Police. He May testified on approximately 6:02 pm, responded he to a of “a report single vehicle accidеnt at Route 50 and Silver Point Lane in West Ocean City, There, Worcester County, Maryland.” he found an unoccupied “older model Ford van eastbound in facing ditch, westbound approximately to thirty forty yards past Silver Point Lane.” Badly damaged, the van was almost side; resting on its its driver’s “ripped side wheels from the vehicle.”
The trooper observed “alcohol in containers the vehicle” and further noted that vehicle, “alcohol had spilled” inside the “leaving a strong odor.” In addition to the alcoholic beverag- es, the van contained a stereo and construction tools and equipment.
The trooper then “ran the registration to find out who the to, vehicle belonged who the operator could be.” He learned that the vehicle’s license plates belonged, not to a Ford van as expected, but “to an '85 ... Chevrolet van registered to a subject Wolf,” named who resided in West Ocean City, Mary- land. Unable to van, further identify owner of the Ford the trooper left the accident scene to interview Wolf at the address he had address, been given. Wolf, At that he found who explained that he had removed the license plates from his Chevrolet van and given them to his brother for “safekeep- ing.” He also informed the trooper that a Conboy,” “David who was brother, then staying with his had taken the license plates and placed them on the Ford van in question. residence,
Leaving Wolf’s Trooper Grinnan returned to scene, accident arriving 30 to 40 minutes after he had initially arrived, he he to the accident. When observed
responded stereo, tools and and other equipment, the construction He items had been removed from van. concluded area,” ... in had the van was still “whoever wrecked have of all of the would reasoning equipment that removal hearing, opined: At the he trips. suppression taken several my and I and I person I was construction wrecked van “[I]f there, I twenty equipment dollars’ worth had thousand my back the van is equipment am to until going keep going like I am not to leave the van unattended gone going because that.” “Think- nearby stop sign.
A taxicab then up” “roll[ed] out of here get that if this is wrecked needs to person ing somehow,” cab. attention shifted to the He saw trooper’s *7 Although “in the taxi passenger’s the front seat.” appellant direction, in looking trooper’s the appellant cab driver was Indeed, head not look at to save his life.” “his [him] “would mine,” the opposite troop- in the direction from plastered “acknowledge” “continued” refusal to er noted. Appellant’s crash, trooper’s or the marked and well-lit trooper, the the all, cruiser, curiosity.” only trooper’s] After “sparked [the situation, trooper, you to the “when have according then the Trooper “pointed to look.” Grinnan everybody wants over to investigate.” cab in still the passen- who was seated
Approaching appellant, vehicle, asked, “Mr. trooper Conboy?” thе ger’s side the and responded, Conboy” “I’m not David then identi- Appellant Unson,” his using Mitchell “George stepbroth- fied himself trooper, name. to the According appellant “appeared er’s intoxicated,” an he detected a odor of alcoholic “strong A person.” breath and beverage [appellant’s] from coming rifle and a vodka on backseat of Popov lay deer bottle the cab. his he appellant
After rifle was and that explained hunt, step to out of the trooper liked to asked did, ... make trooper “patted When he him down cab. any have kind of [appellant] weapons sure that did not other that may be associated with deer hunting, such as buck knives.” down,
During pat felt trooper object an in appel- lant’s back pocket. He “immediately recognized” that it was “a key of some type,” possibly key. a car on the fact “[Biased that the collision had occurred” that a lay vehicle “unat- ditch,” in tended the trooper placed his in appellant’s hand pocket and retrieved the key. key turned out to be “a key, Ford belonging a Ford motor vehicle.” After directing appellant to sit on the ground, trooper returned to the van with the key. He then “checked the Ford with key the van and turned the ignition was, over and discovered that the key fact, in the key to the van.” [wrecked]
As he returned to where appellant was sitting, Trooper remarked, Grinnan “it’s funny, the key fits.” Appellant “shrugged” and “threw his hands up and sаid ... ‘what would ” Then, you do?’ to the according trooper, appellant was, fact,
indicated that vehicle, driving the and that the rear end up locked and he believed the drive shaft fell out, and the vehicle rotated and came to rest in the ditch. And that he had fled the scene because he was drunk. And said, then he “what you would do?’
Trooper placed Grinnan appellant under arrest. Following arrest, a person who was only identified as “Trooper Sutka” arrived at the scene of the accident and took posses- sion of the rifle.
STANDARD OF REVIEW
In
a
reviewing
denial of a motion to suppress, we
accept the findings of fact
court,
made
the
by
circuit
unless
are
they
clearly
State,
erroneous. See Riddick
180,
v.
319 Md.
183, 571
(1990);
A.2d 1239
State,
Marr
152,
v.
134 Md.App.
163,
(2000).
362 novo, however, conclusions, our making all own legal
review de of whether the constitutional determination independent in was and whether state- question appellant’s search lawful 84, at Wengert, obtained. 864 Md. lawfully ment was See 97, 389; Trott, A.2d 1045. Md.App. A.2d THE ADMISSIBILITY OF KEY “the had reason to concedes that Appellant trooper While weapons,” he that the clothing trooper feel contends [his] from by key of a frisk a Terry “taking [his] exceeded the limits “ ‘incriminating that the nature argues He because pocket.” ” to objeсt was key] immediately apparent’ of the not [the was under trooper, constitutionally permissible search not doctrine, as Court promulgated Supreme feel plain Dickerson, in 113 S.Ct. Minnesota v. L.Ed.2d 334 Dickerson, Supreme
In extended the boundaries Court discovered “patdown” of the a to allow seizure contraband Terry long a search as as the contraband’s during lawful immediately by sight is character “incriminating apparent” if the incrimina- touch. 508 But U.S. S.Ct. nature item be discerned without further ting of the cannot object then the cannot be seizure physical investigation, corollary, “plain doctrine or justified “plain under the view” its feel.” See id. claim nature” of support “incriminating of his key immediately apparent,” required by “not as seizure, cites the testimonial following feel”
“plain know, at the Grinnan did excerpt Trooper show felt, he appellant’s pocket, key into that the time reached down, key, the key was even a car let alone during pat the disabled van: you any precautions Did take result
[PROSECUTOR:] having weapon on the back seat? seen Yes, I did. Mr. Conboy I asked [TROOPER GRINNAN:] if he other his and he any weapons possession, had down, he did I him his external patted indicated that not. *9 to make sure that he not garments, any did have other kind weapons maybe that associated with deer such hunting, knives, those sorts things, commonly buck that are carried by hunters. Conboy wearing? What was Mr.
[Prosecutor:] He had a dirty [TROOPER GRINNAN:] shorts and tee on, shirt I believe. you Did locate other on any weapons
[PROSECUTOR:] him? No weapons.
[TROOPER GRINNAN:] Did you any locate other evidence on him [PROSECUTOR:] you that would relate to the initial incident that were investigating?
[TROOPER GRINNAN:] That is correct. you What did learn?
[PROSECUTOR:] down, [TROOPER I believe—I During pat GRINNAN:] my report, have to refer to I believe it his back pocket was correct, shorts, of his shorts —that’s in the rear of his pocket I felt what I immediately recognized key as a car key, some type, necessarily a car but it key, key. was And based on the fact that the collision had I occurred and had a ditch, vehicle that was unattended in the I key retrieved the from his and I pocket, observed that it a Ford key, to a belonging Ford motor vehicle. All right.
[PROSECUTOR:] What did do with the you key? [TROOPER At this point, Trooper GRINNAN:] Sutka No, correction, had arrived. Trooper Sutka had not arrived point. at this I checked key the Ford with the van and ignition was, turned the over and discovered that the key fact, key to the van.
The trial disagreed court appellant’s with conclusion. It search, upheld stating that “in the process of the pat down, if trooper] [the discovers something is certainly relevant, such as the key may fit the vehicle that they for, can’t find the driver trooper] right go [the has the ahead and seize the key.” agree We with the circuit court. violate the Fourth key did not seizure of trooper’s *10 that court. espoused by the reasons not for
Amendment —but doctrine, as a often described although feel The plain doctrine, of problems poses special plain of the view corollary nutshell, yet intrusive less feel is more plain In a its own. reach the need not view. But we than plain conclusive justifiable key of the the seizure of whether question at issue is the search today, because under that doctrine require the warrant exception to under another sustainable incident to a It was a search Amendment. of the Fourth ment And, shall affirm ground, we arrest. on lawful 8-131(a); Modecki Md. Rule circuit court. See decision of the (2001). State, 372, A.2d 521 771 Md.App. 138 v. the propriety discussion of begin our
We
with probable
that a
officer
observing
police
by
search at issue
a crime
committing
has or is
suspect
to believe that a
cause
v.
Brinegar
a warrant. See
suspect
without
may arrest
1302,
160, 176,
1879
States,
93 L.Ed.
69 S.Ct.
338 U.S.
United
committed
(1949).
“has
person
true in cases where
This is
offense,”
as a traffic violation.
criminal
such
very
minor
even
318, 354,
Vista,
121 S.Ct.
532 U.S.
City
Lago
v.
Atwater
of
arrested,
(2001).
lawfully
police
1536,
549
Once
149 L.Ed.2d
as “the area
the arrestee” as well
person
search “the
may
or
any weapons
to remove
of the arrestee”
within the control
destroyed.
United States
be concealed
that could
evidence
467,
224,
L.Ed.2d 427
Robinson,
218,
38
94 S.Ct.
v.
414 U.S.
cause to
(1973). Moreover,
have
as
long
arrestee,
it is not “particularly
search
they
arrest before
vice
arrest rather than
precede
that the search
important
98, 111, 100
S.Ct.
Kentucky,
v.
U.S.
Rawlings
versa.”
642,
State,
(1980);
311 Md.
2556,
see Lee v.
L.Ed.2d 633
(1988).
668,
In his comprehensive
federal4
zure,
why
LaFave
Wayne
explains
R.
Professor
Cir.1994);
(8th
See,
Armstrong,
F.3d 289
e.g., United States v.
Miller,
(4th Cir.1991);
States v.
United
States v.
Of the fruits a search be used to *11 incident, an arrest to which it but this means only is probable precede cause to arrest must the search. If the cause to arrest to a search prosecution prior shows of a man’s it has met its total person, burden. There is no case in which a may validly say, “Although defendant me right officer had a to arrest at the moment when he my seized me and searched the search is person, invalid he in fact me until because did not arrest afterwards.” Sibron, 77, (Harlan, J., 392 88 1889 concurring). U.S. at S.Ct.
“[Tjhe
Harlan,”
proposition
by
stated
Justice
Professor
out,
LaFave
“does not broaden
points
power
police,
of the
but instead gives
protection
some added measure of
to those
but
of criminal
reasonably
mistakenly suspected
behavior.”
LaFave,
3,
5.4,
§
See
vol.
154.
supra,
point,
at
That
notes,
professor
also made
Traynor
People
Justice
v.
(1955).
Simon,
645,
45 Cal.2d
Hernandez,
(5th Cir.1987);
Gay,
[I]f searches, and an available to him before information make a reasonable is entitled to to that arrest incident is where he place arrested and the of the person search if he arrested, in his conduct there is unreasonable nothing fact, In of after the arrest. before instead makes the search convinces innocent and the search searched is person if the contrary is belief to the that his reasonable the officer searched not erroneous, advantage person it is to hand, innocent or if he is not the other to be arrested. On innocence, security of not establish his the search does house, no more from or effects suffers papers, his person, from the same than it would his arrest preceding search it. following search
Simon,
648,
And that 2556, 100 S.Ct. Kentucky, Rawlings (1980), that, arrest followed “where the formal L.Ed.2d 633 of petitioner’s search challenged the heels of on quickly that the important it particularly not believe we do person, vice rather than versa.” the arrest preceded search house, of a search during a warrant-authorized Rawlings, purse. to her empty was ordered occupants one of the did, she it was observed 2556. When S.Ct. U.S. turned then occupant Id. contain controlled substances. him “to take nearby, and told standing who was Rawlings, *12 claimed owner- “immediately Id. Rawlings what was his.” Id. drugs. of the ship” him searching before Rawlings but not
The arrested search of $4,500 Id. The pre-arrest and a knife. finding search аs a valid subsequently upheld was person Rawlings’ it arrest, the fact had regardless incident to an Court, arrest, previous- which the as a his distinction preceded id. at noted, See “particularly important.” not feel was ly did 111, 100 2556. S.Ct. Maryland’s not been lost on Rawlings has
The lesson
searches
of such pre-arrest
courts. WTien
issue
appellate
367
arisen, they
them so
a lawful
upheld
long
has
have
arrest
Lee,
668,
235;
followed the search.
311
537 A.2d
See
Md. at
State,
658,
(2003);
v.
Md.App.
Wilson
150
As in Rawlings, the search issue here pre-arrest valid search response incident to lawful arrest. to a at the question Grinnan suppression hearing, Trooper stated that he had for appellant “leaving arrested scene of a property damage provision collision.” There is no of the Maryland Code an that authorizes officer to arrest a driver for leaving scene of an accident where property damage caused accident is confined to the driver’s vehicle. But that misstatement no consequence. is of It does not vitiate arrest, the lawfulness of appellant’s as that arrest “was other- — —- State, justified.” wise Nieves Md.App.-,-, A.2d-, 2003 WL at *5
Moreover, it is from the trooper’s testimony сlear that his response was never intended to be a complete statement of all Indeed, of the reasons he arrested he appellant. testified that, before appellant, arresting appellant had confessed to driving while under the influence of alcohol. clear impli- of the cation trooper’s testimony was that he arrested appel- for lant more than simply “leaving the scene of a property damage collision.” event, arrest,
In any at the time of appellant’s trooper had appellant cause to arrest driving under the and, influence alcohol before searched him as in Rawl- ings, arrest “followed quickly on the heels” of the search at issue.6 Before Trooper Grinnan even encountered appel- trooper actually driving That the did observe the van is 202(a) consequence. Transportation of no Section 26- Article part: states
lant, van, a with that had crashed strewn he observed someone then aban- apparently into a ditch and beverages, alcoholic that of the van was doned it. He also believed the driver observed, his from a upon in the area as he return probably that with the owner of the van’s the meeting tags, brief And, gone. in the van was now from property that had been owner, the tags the that he obtained from he information there was a reasonable that possibility believed that obviously van at the time of the Conboy” “David the driver of the was he the presume, approached That is we can why, accident. “Mr. passenger Conboy?” cab’s asking up passenger steadfastly taxicab its pulled When a direction, notwithstanding in the trooper’s refused to look the van and a badly police of a well-lit sight damaged uncommon car, individual understandably this trooper suspected the he ap- might Conboy” seeking. be the “David he So Conboy?” ap- inquiring whereupon “Mr. proached appellant, re- confirmed the pellant unwittingly trooper’s suspicions Conboy.” “I’m not David sponding, Moreover, just was at the scene of the accident appellant van. arrived there after removal of from the He property the taxicab, explanation with an of how trooper in a the providing able to leave the scene of the accident. van’s driver was time, in the owning property At admitted to cab, particu- back which was the sort of property, seat of vodka, of that had removed from the van. larly the bottle been And, were enough, appeared if that be intoxicated and, full and containers of alcohol given presence empty van, had trooper inside the van the condition of (a) may general: person A office arrest without warrant Law, Maryland including any rule of the Vehicle or a violation it, regulation adopted any any law under or for violation traffic or State, any authority of if: ordinance of local this (3) person believe that The officer has cause to has violation, any following and the violation is committed offenses: (i) Driving attempting under influence or to drive while alcohol, alcohol, impaired by of an while violation alcohol restriction.... *14 sum, believe the was In the every reason to van’s driver too. the trooper badly damaged had cause to believe that probable van, appar- which littered with had beverages, was alcoholic the ently been in an alcohol-related accident and that still In inebriated had been the driver of that vehicle. appellant short, appellant. the officer had cause to probable arrest
Not the only performed was search of after the appellant arrest, trooper had cause to but arrest probable appellant’s search, occurred within minutes of both re- satisfying that quirements Rawlings: that there was cause to arrest the quickly and that arrest “followed on the heels” of the search. the retrieved the he went trooper key, Once van, directly key over to the in its and then placed ignition, returned to place appellant under arrest. As the seizure of the key and arrest of occurred within minutes of other, fact, each arrest did in as required by Rawlings, See, Anderson, follow quickly on heels of the e.g., search. 487, 553 It Md.App. at A.2d 1296. was therefore a lawful search an incident to arrest.
ADMISSIBILITY OF THE STATEMENT Appellant contends that the trial court erred denying his motion to his suppress statement that he drunk when that, he the van the scene. crashed and fled He argues following the seizure of the key van’s from his pocket, stop investigatory evolved into a custodial detention. That maintains, change, he he required given be his “Miranda warnings” any before further were words between exchanged him and the police. Because warnings given, these were not he claims that his admission of intoxication should have been suppressed. Arizona, 436, landmark case of Miranda 384 U.S. 1602, (1966),
86 S.Ct.
initiated
enforcement
of his freedom
custody
deprived
taken into
or otherwise
Miranda,
any significant way.”
action in
U.S.
they
dubbed
Eponymously
warnings,”
“Miranda
S.Ct. 1602.
remain
right
be told that “he has a
require
suspect
silent,
may
he
make
be used
any
statement
does
him,
to the
right
presence
and that
has
against
evidence
Id.;
see also
either retained
attorney,
appointed.”
of an
322, 114
1526,128
California,
Stansbury v.
S.Ct.
only
these
are
warnings
required
L.Ed.2d 293
But
custody
is both in
and about to be
questioned
the person
when
Stansbury,
See
114 S.Ct.
interrogated.
U.S.
*15
court
custody,
if
in
the trial
person
To determine
a
is
Rucker,
v.
374 Md.
inquiries.”
must make “two discrete
State
(2003). First,
199, 210-11,
the
must
439
court
821 A.2d
the
surrounding
the
of the circumstances
totality
consider
place,
long
and where it took
how
such as when
interrogation,
lasted,
and
many
present,
police
it
how
officers were
what the
did,
physical
said
and whether
restraints
the defendant
and
208, 821
force
to detain the defendant. See id. at
was used
322,
439;
also
511
at
114
1526.
Stansbury,
A.2d
see
U.S.
S.Ct.
circumstances,
then,
the
must
And
in
those
court
light of
felt “he or
person
whether
reasonable
would have
consider
interrogation
at
to terminate the
liberty
she was not
Rucker,
210-11,
A.2d
If the
In State v.
374 Md.
(2003),
Spotting
from the description given by the infor-
mant, the police stopped him in the shopping center parking
lot as he was
into
getting
his car.
Id. at
Affirming trial statements, held that lot of parking this Court the detention stop more because it had investigatory Rucker was than an arrest the time the functional of an equivalent become cocaine, Miranda requiring Rucker admitted to possessing however, disagreed. of Appeals, See id. The Court warnings. in a Observing public that the entire incident occurred See id. time, a that period it took within short of place, place of the only present, there three return were officers not registration upon cooperation, was conditioned license a non-coercive was asked only single, question and that issue, he statements at Rucker before made the Court not in custody found that the defendant “was Appeals to a he was not restrained purposes of Miranda because 212, 221, Id. at formal arrest.” degree associated with required give A.2d to Consequently, 439. were at A.2d appellant. to id. warnings” “Miranda See Rucker, subject Like was not to “custodial appellant he custody was at the time because he not in interrogation” being Trooper stopped admitted to drunk. When Grinnan taxi, Terry investigate a stop appellant’s he executed lawful That at the accident presence unusual behavior scene. into a formal arrest or a stop had not evolved investigatory degree of movement of the associated “restraint on freedom at appellant with arrest” before made statement a formal Also, like Stansbury, issue. S.Ct. 1526. Rucker, busy during on public was detained street appellant time, hours, period his lasted for a short detention daylight conducting the scene only trooper and there was one And, statement, prior appellant to the investigation. finally, restrained; physically was not handcuffs otherwise placed trooper asked to sit on That the merely ground. was he felt and that suspect appellant considered leave” no on the issue bearing custody not “free to have trooper did not communicate views because the those Thus, surrounding appellant. totality circumstances *17 in was not custo- appellant’s statement indicate dy for Miranda when he made he purposes made the state- ment at issue.
Having determined that appellant was not in custody intoxicated, at the time admitted to driving while we now turn to the question of whether that statement was “the product” of either interrogation, “express or its questioning Innis, functional equivalent.” 446 U.S. at S.Ct. it
Clearly, was not. While appellant sat on the ground as
instructed, the trooper walked over to the van
placed
key
ignition.
When the key proved to be the van’s
ignition
back,
key, the trooper walked
“it’s
stating
funny, the
key fits.” That statement was
an
merely
observation made
Innis,
without
inviting
response.
302-03,
See
U.S.
JUDGMENT AFFIRMED. COSTS TO BE PAID BY APPELLANT. SALMON,
Dissenting Opinion by J. The majority’s conclusion concerning legality of the seizure of the key from rear Conboy’s pocket was based on an exception the warrant requirement never by mentioned either party at any stage fact, of this case. the State in its brief even conceded that “this case involves the proper appli cation of the ‘plain doctrine,’ feel discussed most notably the United States Supreme Dickerson, Court in Minnesota v. 2130, 124 (1993).” U.S. 113 S.Ct. L.Ed.2d 334 *18 justified was as “incident
The holds that the search majority view, exception to the warrant my to” a valid arrest. prior the justifiably State because requirement ignored was inapplicability. demonstrates its Maryland precedent I. Appellant’s Arrival Known Prior to Facts in a Cab at the Accident Scene 28, 2002, David Trooper at Grinnan May p.m., On 6:02 at Route of a accident single-vehicle to the scene responded City, in The Maryland. Lane Ocean and Silver Point West van, the a 1978 Ford which vehicle accident was involved the road and facing on the westbound side of was eastbound exten- up its “contents shaken extensively damaged, was with van, equip- stereo sively.” Trooper Grinnan saw Inside tools, ment, trooper extension cord. The and an construction vehicle, in the some carrying observed “alcohol containers also alcohol, odor of leaving strong alcohol a spilled and the had reveals, he nothing as the observed alcohol.” As far record else alcohol containers. concerning tag for the 1978 Ford
Trooper discovered that Grinnan Chevrolet, to which registered van to a 1985 was belonged Wolf,”8 nearby. “Mr. who lived to home to him about question went Wolfs Trooper Grinnan plates that the license to tags. Trooper Wolf told Grinnan at had under a sofa seat his the 1985 been hidden Chevrolet house; been Conboy he also that David had brother’s said words, In the Wolf trooper’s house. staying his brother’s sofa, under the to his gone Mr. had Conboy “indicated that belief, it far tag on the van.” So placed and removed record, did not when David say as is reflected in Wolf Trooper upon testimony David are based facts set forth Grinnan, hearing. suppression lone witness name. 8. The record does not contain Wolf's first vehicle, on the Conboy placed tag provide nor did he description Conboy.
Trooper trip Grinnan’s Wolfs house and back to the accident scene took “30 to 40” minutes.9 He returned to thе accident scene at “6:40-6:45 [p.m.],” whereupon he discovered tools, that construction stereo equipment, and an extension thirty forty cord that had seen minutes previously were missing. This led Trooper Grinnan to believe that “whoever had wrecked the van” had retrieved some of the property in the likely still be vicinity. *19 trooper testify
The did not that from the information he obtained from Wolf he believed that there was a “reasonable possibility” that a “David Conboy was more than the likely driver of the van at the time of the accident.” op. Cf. Moreover, shows,
Insofar as it concerns Trooper Grinnan’s knowledge regard- accident, the ing between relationship alcohol and the the only the thing trooper knew to prior appellant’s arrival was that the van had transporting been alcohol. No “open containers” of alcohol were observed in the van except insofar as broken containers can be considered to be “open.” cross-examination, Trooper 9. On Grinnan sequence testified as to the events as follows: scene, Q. you initially ... you So ... arrived on the and then left minutes; thirty forty about or is that correct? A. That’s correct. Q. you anybody you And didn’t see initially when were on the scene? No, A. I did not. Q. you up they No one came to and said thаt saw the accident anything occur or like that? A. No. you Q. So thirty forty came back to the scene about minutes again. later and went and searched the point you van And at some taxi, you observed a said thirty yards taxi was about away— A. That’s correct. II. Trooper by Facts Grinnan fi-orn Learned to Appellant Time Arrived at the Scene of the the Conclusion Search as the The near accident scene front- appellant arrived taxi driver looked in Although in a cab. passenger seat Grinnan, Trooper -wrecked van and at the direction direction, in the troop- looked in the which opposite because suspicious, er’s was both unusual “most opinion (1) valuable nosy.” trooper are The reasoned: con- people van was unlikely like that in wrecked equipment struction (2) it would take “more possessor; to be abandoned its (3) equipment; to all the trip” than one retrieve construction area”; be “in the likely whoever had driven the van was to still (4) good way transport be a taking cab would (5) therefore, the incurious passenger construction equipment; van. the driver of the wrecked That might in the cab well be driver to signal pull led the cab reasoning Trooper Grinnan the road so he could investigate the taxicab to the side of further. cab, approached side passenger
When “I’m “Mr. Conboy.” passenger replied, officer said *20 name Conboy.” The then said his passenger David his gave “Mitch further name Upon questiоning, Unson.” fact, real “George passenger’s Mitchell Unson.” the Conboy, was David but was not discovered name Nolan this immediately.10 then asked
Trooper appellant questions concerning Grinnan van, cab, he hailed the driving whether he had the where been area, in the whether he knew being his and purpose about accident. record does reveal anything to those appellant’s responses questions. trial, According agreed to an statement facts introduced Con- identity Conboy boy’s police until after true was not discovered booked, headquarters, had been taken back to released. this
During period questioning, Trooper Grinnan noticed that appellant appeared intoxicated and smelled strongly Also, alcohol. the trooper observed a 270-caliber rifle deer Popov and a bottle of vodka on the backseat of the taxicab. Appellant said that those items belonged him.
Trooper told appellant step Grinnan from the After cab. him if complied, trooper asked he had other any in his weapons possession. Conboy responded in the negative. Trooper Grinnan then performed pat-down of appellant’s exterior to make clothing sure he did not have any weapons associated with deer hunting, such as a buck knife or similar weapons. He found no but weapons did feel a “of some key in appellant’s sort” rear pants pocket. He extracted the key аnd saw that it “belonged to Ford motor vehicle.”
The trooper explained he took why key out of appel- lant’s pocket by saying: “Based on the fact that the collision had occurred and I had a vehicle that was in the unattended ditch, 1 retrieved the key pocket.” from his From that answer, coupled thereafter, with what he did immediately only logical inference that can be drawn is that Trooper Grinnan extracted the that he key so could find out whether (that his suspicion the incurious cab passenger was the driver van) of the wrecked was accurate.
III. Testimony Suppression Hearing as to What
Happened After Key the Retrieval of the Trooper Grinnan van, walked over to the wrecked tried the key ignition, and found that the key fit. He then walked back to said, where appellant was sitting “It’s funny, key fits.” Appellant then confessed that he had been driving van and had fled the accident scene because he was drunk. Appellant was then arrested for “leaving scene of a property damage accident.” As the majority cor- notes, rectly “There is no provision of the Maryland Code that *21 authorizes an officer to arrest a driver for the scene leaving of accident [an] where the property damage by caused is to the vehicle.” (Op.
accident confined driver’s 224.) Moreover, determine, as far as I can it is neither a A.2d a nor violation to leave scene of one-car crime a traffic type.11 accident of this not owner identity did learn thе of the
Trooper Grinnan after days appellant’s vehicle until several arrest. wrecked counsel, At the neither the motions suppression hearing, the fact that Trooper nor Grinnan even mentioned judge, anyone charge. an alcohol-related The closest appellant faced said subject to counsel appellant’s came when charges.” faced “traffic IV. Probable to Arrest Cause cause, stated, is a nontech- frequently we have “Probable guilt. belief of ground nical of a reasonable for conception provi- Maryland Article have Transportation 11. The Code does sanctioning a driver of vehicle who leaves the scene an sions a (if give bodily fulfilling duty injury his or her to aid is accident without involved) property if an or other is or information unattended vehicle Ann., (1977, §§ damaged. Transp. 20-105 Md.Code II 20-103 to See Repl.Vol.). applicable. none of is But these sections here legality purposes, is For Amendment of an arrest deter- Fourth law, contrary.” any federal mined under State ‘‘absent statute to the 496, 518, Evans, Mary- A.2d 423 Under State v. 352 Md. law, may any for arrest be made offense committed land a warrantless may Additionally, presence. arrest be in the officer’s warrantless felony, arresting police in the any made for whether committed officer's not, felony presence probable if the officer cause believe that a or has regard suspect has been and the committed it. committed offenses, Sаve and traffic the rule is different. misdemeanors statute, may exceptions spelled an not arrest a certain out officer suspect offenses a warrant for misdemeanors or traffic without presence, probable even if has committed in the officer’s the officer suspect cause to believe the has committed the crime violation. are, however, exceptions There to this rule. For misdemeanors listed 2-203(b) Maryland in section of the Criminal Procedure Article of (2001) Code and for traffic offenses listed section 26-203 (1977, Transportation Maryland Repl.Vol.), Article of the Code may arrest if has cause to believe officer he/she presence. Driving suspect out of has committed offense his/her influence is of the traffic offenses that comes while under the one exception. within the *22 A finding requires of cause less evidence than probable is conviction, to sustain a but necessary more evidence than merely suspicion. would arouse Our determination of nontechnical, whether cause exists probable requires a com- mon sense evaluation of the totality the circumstances in given a situation in light facts found to be credible by the trial judge. Probable cause exists where the facts and circumstances taken aas whole would lead a reasonably cautious to believe person felony that a had been or being is Therefore, committed by person arrested. to justify a warrantless arrest must pоint specific which, articulable facts taken together with rational infer- facts, ences from those reasonably warranted the intrusion. To determine whether an had probable cause in a officer case, search, specific probable here cause to “the reviewing court 'necessarily must relate the known to the information to the elements that the believed officer offense officer was being Davis, had been committed.” DiPino v. 18, 32, Md. 729 A.2d Wallace, 137, 148-50,
State v.
(2002),
372 Md.
The rule in considering whether the “search incident” exception is applicable, the court should direct its probable cause upon focus “the information known to the officers ... [regarding] the elements of the offense that the officer be- lieved was being or had been committed” is here important. The majority ignores the issue of what crime Trooper Grinnan actually believed had been prior committed to the search and focuses, instead, on what offense Trooper might Grinnan have 367-68, believed had been committed. See op. 843 A.2d at view, 225. In my this focus is misdirected. Grinnan,
Trooper the sole witness at suppression hear- ing, gave no hint his during that testimony any time prior to appellant’s confession he believed that appellant had driven the van while under the influence of alcohol. The evidence search, showed that prior Trooper Grinnan suspected been the driver of the wrecked appellant have van might that, driver, he left the scene if had was accident, a crime. thought which he property-damage incident to an arrest for behavior that Self-evidently, search is is not a crime invalid. upon if the is correct it focuses majority
Even when arrest probable of whether there was cause to issue search) alcohol, under the influence of driving to the (prior as to did not charge cause for an arrest exist. *23 otherwise is majority’s why The discussion as it concludes 367-69, opinion. A.2d 224-25 of the Pages forth at set in of the conclusion that support Two central “facts” advanced cause to believe that Trooper Grinnan had (1) believed from Trooper had van are: Grinnan wrecked he from that there was a “reason- information received Wolf more than Conboy likely that a David was possibility” able accident, time of the op. driver of the van at the (2) he statement was not appellant’s A.2d at and Conboy “unwittingly trooper’s suspi- David confirmed Conboy. he Id. never Trooper cions” that was David Grinnan that, him to believe said that his with Wolf led conversation drove the van at time of likely, Conboy. more than David record is as to what he sparse the accident. Because the so he, Wolf, whether in way knowing told have no was we fact, know, Trooper held that For all we Grinnan’s belief. Moreover, a “shot in the dark.” may have been question “I’m not David Grinnan never said Trooper appellant’s as David response appellant’s idеntity confirmed Conboy” testimony the “I’m David Conboy. only regarding answer as follows: Conboy” was make the cab driver? Q. you initially Did contact with via side passenger’s I made contact initially A. my is with the defendant. vehicle. So first contact say? And did Q. you what Conboy. A. I said Mr. response. And what was his
Q. George, He said David I’m or I’m Conboy, A. I’m not Unson, he gave he had said me. Later Mitch is that Unson, full name of Mitchell I George who later determined his stepbrother. Q. And he used the name David when Conboy you had just used the last name? Yes,
A. did. on factors Depending such as the size of the community inquiry surname, where is made and how common the there infer, may be some circumstances where can one legitimately, that a denial of one’s identity means the opposite. For instance, if an officer confronts a sober adult on the streets of New City is, York “Mr. says, Smith?” and the response Smith,” “I’m not Horatio one infer might possibly that the is, person likely, if, here, most Horatio Smith. But uncommon, surname is the locale is suburban-residential (about Berlin, one-third of the way between City Ocean drunk, Maryland), person and the responding is the suggested And, inference event, cannot be drawn legitimately. any there is no indication that Trooper Grinnan drew the suggest- inference,12 ed at the point appellant was searched. After Trooper got Grinnan that response, he asked appellant wheth- van, er he had driving been whether he knew anything *24 accident, cab, about the where he hailed the and he why was in record, the area. Based on this we do not know what appel- lant said in response to the questions, much less what Trooper appellant’s Grinnan made of responses.
What we do know is that Trooper Grinnan said that at the
search,
time of the
he merely “had a feeling [that
was a
there]
possibility
[appellant]
that
suspect.”13
was a
Based on that
trial,
appellant’s
12.
Trooper
At
it
charged
was revealed that
Grinnan
appellant
George
under the name of
Mitchell Unson and that it was not
police custody
until he was released from
that it became known that
Thus,
appellant’s
fact,
Conboy.
real name was David
as a historical
we
not,
fact,
appellant’s
know
Conboy" response
that
"I’m not David
did
in
identity” Trooper
“confirm his
in
Grinnan’s mind.
cross-examination,
following
On
colloquy
place
took
as to what
Trooper
thought
appellant questions
Grinnan
immediately
he asked
prior to the search:
circumstances,
I believe
answer,
all the other
with
coupled
had,
search,
that,
merely
Trooper
the time of the
Grinnan
cause,
believe
most,
not
to
suspicion,
probable
a reasonable
van.14
wrecked the
had
appellant
cause to
probable
had
trooper
that
assuming
Even
van,
believe that
wrecked the
I do not
that appellant
believe
confession,
cause
probable
had
appellant’s
to
trooper, prior
under
had driven the van while
appellant
that
to believe
sup-
facts in
majority
lists several
аlcohol.
influence of
(1)
conclusion,
appellant “appeared
viz:
contrary
aof
port
him, which was
first saw
Trooper
when
Grinnan
intoxicated”
first arrived
Trooper
minutes after
Grinnan
forty-five
forty
(2)
scene;
in the back seat
the bottle of vodka
at the accident
that
been removed
of
had
property
the cab “was the sort
(3)
then
that
was
van”;
the fact
given
from the
and
“full
intoxicated,
the fact that
saw
trooper
with
coupled
alcohol,”
every
“had
trooper
empty
containers
Q.
you stopped
your report
Okay.
you
indicated in
that
And
also
was later
you began
passenger
interview the
who
the taxicab
about,
you
began questioning
you
first
Conboy,
you
him
said
Mr.
so
him,
you
anything about
you
know
name. Did
ask
do
asked him his
or—
the accident
know,
of,
Yes,
you
through
questions
were
I went
standard
A.
here,
van,
you
your
did
driving
business over
where
you
this
what is
actually my phone call to
And it
get picked up, that kind of stuff.
was
equipment that
Company
all
is how I located
the Sunshine Cab
in his van.
Q.
asking
questions
the accident?
you were
him
about
So
A. Yes.
Q.
guy
you
feeling,
based on
point
had a
this is
It was at that
things?
all of those
Yes,
person
feeling
possibility
is a
it was a
that this
A.
I had a
yes.
suspect,
added.)
(Emphasis
probable
demanding
than
suspicion is a less
standard
14. Reasonable
suspicion can
only
that reasonable
be established
in the sense
cause
quantity
in
or content
than
is different
with information
cause,
that reason-
but also
the sense
required to establish
*25
reliable than that
suspiciоn
from information that is less
can arise
able
required
cause.
to show
White,
325, 330,
S.Ct.
There was no evidence that alcohol were containers re- (Fact 2). moved from the van post-accident The evidence alcohol concerning containers was that Trooper Grinnan saw vehicle, “alcohol in the containers some alcohol.” carrying this, From it can be inferred that some of the alcohol contain- alcohol, ers did not carry but we do not know whether was because the containers were broken in the crash or whether someone Moreover, drank their contents. if even one were to conclude that there was at least one empty container imbibed, whose contents had been we do not know if the trooper ten, saw empty one container or nor do we know what was in the containers. This leaves the facts that were proven: The appellant smelled strongly alcohol and “appeared intox- icated” when Trooper Grinnan him saw at the accident scene. accident, course, took place before Trooper Grinnan arrived. Even if one were to assume that the accident oc- just (an curred moments before the trooper arrived unlikely scenario), I do not believe that one can infer legitimatеly that a person who presently “appeared intoxicated” was therefore intoxicated forty forty-five minutes To previously. make inference, such an needed, more information would be such as information what concerning alcoholic beverage was imbibed and the amount.
Probable cause is if lacking the circumstances relied on are “susceptible to variety of credible interpretations necessarily compatible with nefarious activities.” United Kandlis, States v. (9th 132, 136, Cir.1970), 432 F.2d quoting United States v. Selby, [241,] ... (1977) 407 F.2d 243 [ ]. Moore, United States v. (9th Cir.1973). 483 F.2d At the searched, time appellant’s words and actions were susceptible of a variety of explanations inconsis- tent with having driven the van while under the influence of Thus, alcohol. at that point, Trooper Grinnan did not have probable cause to arrest him for that traffic offense.
384
Y.
Timing of the Arrest
record,
is
in the
timing
the
not shown
Although
precise
two minutes
place only
arrest
took
one or
appellant’s
probably
Therefore,
“essentially
the search was
con-
after the search.
I concede that
Accordingly,
with the arrest.15
temporaneous”
exception was
element of the “search incident”
temporal
the
years ago,
But as this
said about two and one-half
met.
Court
v.
enough.
the
element is
State
Funk-
meeting
temporal
(2001).
houser,
696,
A.2d
140
782
387
Md.App.
Funkhouser,
stopped
vehicle was
for a
the defendant’s
violation;
officer
the defendant out
police
traffic
the
ordered
car,
with the order.
Id. at
complied
and the defendant
108,
A.2d
then
a “cocaine-sniffing
782
387. The officer
had
at
presence
scan the
for the
of cocaine.
Id.
canine”
vehicle
708,
a
alert at both the
dog gave
On
State
fanny
police
the search of the
had
cause
pack
alert.
a result of
canine
Id.
positive
arrest Funkhouser as
721,
argued
“tight
782 A.2d
The State also
387.
183,
2,
(1991),
State,
n.
A.2d 740
In Ricks v.
Md.
191
586
322
Court said:
invalid, even if
in
would not have been
Ricks
The search
this case
long
bag.
as the search and
was arrested after the search of
As
may
essentially contemporaneous,
analyzed
be
arrest are
a search
principles governing
incident
to arrest. Lee [v.
under
searches
668,
],
],
(1988)
[642,]
citing Rawlings
A.2d
v.
311 Md.
537
235 [
State
(1980);
Kentucky,
L.Ed.2d 633
100 S.Ct.
65
U.S.
471, 481-82,
State,
Md.App.
A.2d 1296
Anderson
sequencing” between the search and the arrest made the
search incident to the arrest.
Id. at
That the have probable cause for a lawful arrest of person does not in justify itself a warrantless *27 search of that The person. search must be incident to an arrest may itself. It not be incident merely good cause to make an The arrest. existence of an unserved warrant of arrest, instance, for justify would not a warrantless search of a person who is not actually arrested. As this Court State, in 574, 577, observed v. DiPasquale Md.App. (1979): A.2d 665
That the
might
here
have
established
cause
facts
an arrest
the appellant, even before the baggie was
for
of
seized, and for a good search incident thereto which would
have produced the baggie is beside the point. No arrest
was made until
the seizure and the arrest was predi-
after
cated on the observation
the thing seized.
of
(Emphasis supplied).
State,
And see Dixon v.
23 Md.App.
19, 26,
(1974) (“At
The State seeks to avoid the foreclosing effect of no arrest having been made [prior to the by search] arguing that the arrest followed the search almost immediately was, therefore, thereafter and “essentially contemporane- ous” as if that tight were sequencing dispositive. In this clear, however, case it is that no decision to arrest Funk- housеr had been made and that the seizure and search of the “fanny pack” was (cid:127)no mere incident an arrest already of behind, It parallel on a track. motion, moments even in if “fanny rather, drugs in the
was, suspected finding agent catalytic precipitating was the pack” suggestion is no case. There arrest in this Funkhouser’s regardless arrested to be going Funkhouser was an revealed. This “fanny pack” what the search of to search. arrest incident incident to akin to the ostensible is far more
This case down Smith Court struck Supreme arrest which 108 L.Ed.2d Ohio, S.Ct. paper gro- a brown and searched grabbed then The carrying “gingerly” been Smith had cery bag which they police. from the When to shield attempted then immediately bag, they in the drug paraphernalia discovered that the ruled The Court Ohio Supreme arrested Smith. arrest. search incident to lawful constitutional was a search the search in time between the closeness Notwithstanding the arrest. arrest, an incident of the search was not Court held: Supreme however, by the arrest “justifying] reasoning, That time ... the search the same and at search *28 occasion arrest,” As we have had “will not do.” just observe, incident axiomatic that an is “[i]t past of its part and serve as an arrest may precede search searches incident for exception justification.” arrested lawfully a to search police arrest permits Contrary control. his immediate and areas within person permit it does not reasoning, Suрreme Court’s to the Ohio a warrant or citizen without any to search immediately follows. as an arrest long cause so 543,110 494 S.Ct. U.S. necessary a condition is contemporaneity
Essential incident, a condi- but it is not out-of-sequence an sufficient itself, not, in and of is “Essentially contemporaneous” tion. mantra. legitimating a 111, 98, Kentucky, Rawlings such
Cases State, (1980), 2556, and Lee v. L.Ed.2d 633 100 S.Ct. (1988), closely cases in which the were Md. 537 A.2d related, arresting acts were searching proceeding of State, simultaneously. Md.App. Anderson v.
553 A.2d fully explained significance being we of “essentially contemporaneous” qualifier as the for a depar ture from the time ordinary sequence. is rigid no that the arrest requirement literally
[TJhere precede its search It is enough they incident. are essentially contemporaneous. The exigencies give rise to the search exception incident in the first place— the risk of harm to the arresting officer and the risk of destruction readily of accessible evidence—sometimes compel departure from the formal protocol. There will be occasions when the officer arresting deems it tactfully unwise to lose critical seconds or even to be momentarily distracted from his overriding of necessity “beating his opponent circumstances, to the draw.” Under the it would exalt form over substance to the of point absurdity to insist that an officer his hand clap upon an arrestee’s words, shoulder and say operative “You are undеr arrest,” before disarming neutralizing a potentially and/or dangerous target. The paradigm might yield a dead It is enough, therefore, that the search closely officer. anticipate, or contemporaneously parallel, shortly follow the arrest which it is an incident. In all three after of frames, time it is still an incident of the arrest. This is the purpose practical requirement that a lawful arrest and its search only incident need be essentially contemporaneous.
(Emphasis supplied).
The temporal proximity between the search and the ar- rest, however, does not qualify the search as an “incident” of the arrest. That is a separate consideration. The seiz- ing searching the ‘fanny pack” in this case was not consequence incident a decision to arrest Funkhous- *29 Funkhouser, er. The rather, arrest of was a consequence of what was found in the search of the “fanny pack,” notwith- standing the the detectives may have had an fact alternative and independent basis arresting him. They
388 was flawed was not such a basis. What acting not on
were arrest, the but the search and in time between proximity It was of relationship. cause-and-effect proper the lack of v. in Anderson State. spoke link that we this causative situation that essentially combat exigencies parade- rigidities from the formal exempt policeman him, however, from estab- exempt do not ground sequencing be- relationship cause-and-effect indispensable lishing The search its incidents.... event and predicate tween the to using itself its results may “bootstrap” incident not itself may justify justification. No search its own provide Thus, although the attend- it finds.... on the basis of what ”to, it must technically “subsequent be need not ant search arrest. predicate to” its still be “incident lawful (1989) 481-82, [471,] (emphasis ] A.2d 1296 [ 553 Md.App. added). the arrest the time within which period
The shortness not transform in this case could the search followed had its own The search the cause of search. arrest into not an incident The search was causation. independent the arrest. added). (some 731-34, emphasis
Id. at
782 A.2d
view,
of the Funkhouser
portions
my
just-quoted
Funkhouser,
Here,
no
there was
dispositive.
are
opinion
if the fruits
to be arrested
going
indication that
van;
that fit the
key
revealed a
had not
of the search
therefore,
causation.” Id.
search,
independent
“had its own
State,
And,
in Lee v.
unlike
situation
When
warrantless
modality of a
non-preferred
disfavored or
of a
the disincentive
search,
that suffers
it is the State
*30
389
It is the
that then must
State
presumption
invalidity.
rebutting
presumption
assume the burden of
that
of invalid-
the warrantless search was somehow
ity
proving
that
justified
“jealously guarded” excеptions
under one of the
requirement.
warrant
State,
458, 493-94,
I do think that the without even to do attempting so, show fortuitously produced enough evidence to In exception applicable.16 my “search incident” was here search, arrest was incident to the which is opinion, appellant’s York, v. New 392 constitutionally impermissible. Sibron U.S. (1968). 40, 63, 1889,20 917 88 S.Ct. L.Ed.2d VI.
The Plain Feel Doctrine It was for the to decide whether the unnecessary majority “plain justified key feel doctrine” from extracting appel- I pocket. exceptions lant’s Because believe that to the warrant relied are requirement upon by majority inappli- cable, the issue is addressed below. Ohio, 1, 1868,
In Terry v.
392 U.S.
88 S.Ct.
but rather to
officer and
from
protect
police
judge
exception
16. The motions
did not think the "search incident"
applicable
evidently
"plain
either.
believed the
feel”
He
doctrine was
applicable.
judge
The motions
said:
Well, yes,
argument,
purpose
pat-down
there is no
of the
is not
discovery
pat-down
process
of evidence. But if in the
relevant,
something
discovers
that he knows or feels to be
he can't
that,
just
ignore
right
go
key.
he has the
ahead and seize the
1884,
29,
harm. Therefore, limited to a search for frisks are Terry 910-11. danger. public the officer or might place weapons Dickerson, S.Ct. Minnesota v. See (1993). 2136, 124 L.Ed.2d 334 523, 544, S., A.2d 607 Md. In re David officer, certain under of a Maryland, right *31 conditions, has been “Terry handguns a frisk” for perform Ann., § Law 4-206 Crim. statute. See Md.Code by codified (2002). person on the weapons found seizing In addition to seize officers are allowed “pat-down,” a lawful during “immediately apparent.” as such is identity whose contraband 2130, 124 Dickerson, 366, 375, 113 S.Ct. Minnesota v. (1993). L.Ed.2d 334 re- frisk” was discussed legitimate “Terry of a scope S., In re David in the case of Appeals the Court of
cently
object
an
to his
saw David S. show
A
officer
supra.
police
object
in his waistband.
and then stuff
companion
extensive law enforce-
530,
Based on his
Md. at
The Court held
because,
officer had “even
object,
felt the hard
when he
Id.
carrying
gun.
that David S. was
more reason to believe”
541-42,
that the bag in respondent’s waistband was not a weapon, the search respondent’s property exceeded the permissible of scope a Terry and the evidence should be sup- frisk pressed. S.,
In re
544-45,
David
In the portion of the Minnesota v. Dickerson decision relied upon by the Court in the case, David S. the Supreme Court said:
If a police officer lawfully pats down a suspect’s outer clothing and object feels an whose contour or mass makes its identity immediately apparent, there has been no inva- sion of the suspect’s privacy beyond that already authorized the by officer’s search for weapons; the object is contra- if band, its warrantless seizure would bejustified the same practical considerations that inhere in the plain-view con- text.
392 375-76, Dickerson, (emphasis 2130 113 S.Ct. 508 U.S. at added). view” feel” of “the doctrine “plain plain
The arm case, viz: in the In re David S. explained bag the Cpl. Segalman once removed argues The that State officer containing drugs, the it to be a package believed On the record it view doctrine. plain could seize under plain us, view doctrine is not satisfied. plain before (1) that: requires of the Fourth Amendment view doctrine be or the must lawful officer’s initial intrusion which position in a from properly must otherwise be officer (2) area; incriminating particular she can view a ” must “immediately apparent; be character evidence (3) have a of access to right the officer must lawful State, 76, 88-89, A.2d Md. 771 object v. 364 Wengert itself. re- 389, Wengert observed in that “[t]he 396 We ‘immedi- object’s incriminating that an nature be quirement view’ is not doctrine ‘plain ensures ately apparent’ one search from general exploratory in ‘а engage used last object incriminating something to another until ” 89, A.2d v. (quoting Coolidge Id. 771 at 397 emerges.’ 2022, 2038, 443, 466, New S.Ct. Hampshire, (1971)). “immediately the term Construing L.Ed.2d we apparent,” said:
“
however,
mean that
‘Immediately
does not
apparent,’
as to the criminal
nearly certain
the officer must be
Instead,
‘immediately apparent’
of the item.
nature
associ-
an
must
cause to
have
means
officer
object
activity.”
with criminal
ate
omitted).
(citations
89,
Trooper admitted that Grinnan he could not tell if key vehicle; he felt was for a motor he simply knew it was a key of coins, some sort. it Except is to think impossible any object that an likely adult male is more to have in his pocket than a key of some circumstances, sort. these Under I would hold that Trooper cause, Grinnan did not have at the moment he felt the key, to believe that key was associated with the crime he was investigating any other crime. —or seized, Because the key was illegally key should have been suppressed, along any with testimony concerning key.17
The Confession I agree with the majority’s conclusion that appellant was not in police custody when he confessed to Trooper Grinnan and therefore the fact that he had not been advised of his Miranda rights was irrelevant.
The issue of
(“It’s
whether Trooper Grinnan’s remark
fun-
fits.”)
ny,
key
is the functional equivalent of interrogation
17. The
poisonous
"fruit of the
tree”
aspect
doctrine is an
rule,
exclusionary
judicially imposed
sanction for violations of the
right against
Fourth
improper
Amendment
arrests and unreasonable
prosecutions,
searches and
requires
seizures in
suppress
courts to
evidence
product
governmental
that is the
of unlawful
activity. Mapp v.
Ohio,
643,
1684,
(1961);
367 U.S.
81 S.Ct.
Ferguson
L.Ed.2d 1081
v.
State,
542,
(1984).
301 Md.
Pringle
(2002),
370 Md.
547 n.
For
case to the circuit court
retrial.
and remand the
March