Ott v. State

A.2d OTT, Thomas E. III Maryland. STATE Term, Sept. No. 1991. Appeals Maryland.

Court

Jan. 1992. E. Lansburgh, (Stephen Asst. Public Defender Victoria S. Defender, Harris, brief), Baltimore, peti- for Public both on respondent. tioner/cross (J. Curran, Jr., Bair, Atty. Joseph E. Asst.

Gary Gen. Gen., brief), Baltimore, for Atty. respondent/cross both petitioner. MURPHY, C.J., ELDRIDGE, and

Argued before CHASANOW, McAULIFFE, RODOWSKY, KARWACKI BELL, and ROBERT M. JJ. BELL, Judge. M.

ROBERT questions for the whether presents This case resolution III, Ott, petitioner, illegally Thomas E. the was detained was, and, if he whether the evi- and/or arrested illegally or reason of detention arrest should dence seized the The a deter- question requires latter suppressed. have been challenge seizure of standing mination of petitioner’s for Frederick ruled County The Circuit Court evidence. (1) standing by that: he had finding in favor of petitioner, of seat in the automo- occupation virtue of his the driver’s first bile; (2) had cause in the probable “the officers [no] did;” (3) of the car’s go they in like and the search place cer- incident arrest “and glove petitioner’s box not was court, The there- weapons.” presence not for the tainly fore, appealed.1 the evidence and State suppressed Ott, court reversed. State v. appellate The intermediate Assuming arguendo 584 A.2d 1266 Md.App. court held that the initial standing, petitioner to a and the did not rise petitioner between encounter It further held that Fourth Amendment violation. arrest arrest, to an invalid pursuant albeit petitioner’s “Thus, warrant, faith. the warrant- good effected as a search incident to a search the vehicle was valid less arrest...,” 584 A.2d at Md.App. lawful had been handcuffed notwithstanding glove the automobile before the box was placed and outside searched. granted petition for writ of certiorari petitioner’s

We petition important conditional to address State’s forth, For the reasons hereinafter set questions presented. Special Ap- will of the Court of judgment we reverse peals.

1. not in dispute. Consequently, adopt facts are we will opinion the statement of facts as set out in the of the Court On Special Appeals: January Cpl. Fogle ^[2] on routine patrol Frederick, near the Francis Scott Mall in Key Maryland. a.m., people sitting At about 1:40 he observed two a car parking in an deserted lot that mall. public otherwise signs posted trespassing,” No that said “No nor were indicating parking prohibited were there was any (1974, Maryland Repl.Vol.) appeals pursuant Code 1. The State to 12-302(c)(3)(i) Proceedings of the Courts and Judicial Article. Pur- § section, alia, may appeal, inter in a case suant to that the State under, 12-302(c)(3)(iv), brought In with § § Art. 286. accordance charges this Court affirm the decision of must be dismissed should charged possession with of cocaine the trial court. Petitioner was with intent to distribute and related offenses. hearing Cpl. Fogle. only testify suppression 2. The witness to at the short, In after certain hours. no restrictions had been Fogle [approached] at all. the car and its occu- posted of pants previ- thefts and acts of vandalism that because in the ously parking had occurred lot. When he decided so, nothing suspicious occurring to do he saw the car or anywhere else nearby.

Fogle asked the individuals their names and also two doing them- they They asked what were there. identified (seated seat) Thomas in the driver’s and selves as Ott (seated seat), in the and passenger’s Sandra Sorenson talking. Fogle After they said that were obtained just one, from each he radioed head- identification run a check quarters computer to to determine whether outstanding of subject either of them was the an warrant. Fogle’s testimony suggested Ott’s or Nothing his were responses questions suspi- Sorenson’s to initial likewise, manner; Fogle appears cious in to have any computer a check requested written identification to run as a matter routine. outstanding

The check indicated that an computer war- in a appear rant for of his failure existed Ott because Fogle subsequently arrested “non-payment” civil case. then asked Sorenson—the car Fogle Ott on this basis. so other officers on step out of the car that the owner—to a search incident to Ott’s arrest. the scene could conduct car, Cpl. spied Twenty- As Sorenson exited the Johnson a fell from her lap. dollar rolled into a straw that up bill evidence, Fogle recognizing confiscated the bill to ingest dangerous could used controlled substances. They proceeded The to search the car. discover- officers bags three a white glove compartment ed in the to be cocaine. Fogle recognized substance that powdery under the seat a small they passenger addition found residue on it. powdery mirror with a white round Sorenson, and transported officers handcuffed Ott signed station. After Ott them both he told that he rights Cpl. form Smith waiver get out of debt. trying to sell cocaine

211 fact, outstanding in no Fogle later determined Cpl. existed for Ott because the bench warrant had 29, satisfied on December 1989. Another sheriff been warrant, had served the had not removed apparently but 5, computer January from the before 1990. At the hearing, computer the State introduced suppression which showed that there was an active warrant printout Cpl. Fogle computer ran the search. when 634-35, at 584 A.2d 1267-68. Md.App. at

2. He present argued, Petitioner did not evidence. any however, that, since the warrant on the basis of which the invalid, arrested. illegally arrest was made was he was standing, by Petitioner also contended that he had virtue car. being his seated the driver’s seat of the

A. arrested on the basis undisputed It is satisfied outstanding of an arrest warrant which been Thus, Fogle’s subjective unless days Cpl. seven earlier. supplied by reliance on the outdated information good faith computer sheriff’s mandates a differ- County the Frederick result, argued arrest The State petitioner’s illegal. ent below, agreed, Special Appeals and the Court applies to the rule good exception exclusionary faith under- judice. case sub policy The court reasoned that the “a rule, remedy created exclusionary judicially lying safeguard rights generally Fourth Amendment designed effect, consti- personal its deterrent rather than a through United States v. right party aggrieved,” tutional 3412, Leon, 897, 906, 82 L.Ed.2d S.Ct. Calandra, United States v. (1984), quoting 613, 620, (1974), 38 L.Ed.2d misconduct”, id., and, deter particular, “to 3417, 82 L.Ed.2d at is not furthered 104 S.Ct. at when, acting than in bad evidence rather by suppressing faith, Md.App. faith. 85 complete good act Leon, citing A.2d at 468 U.S. at at 696 (citing United States

Peltier, 422 2313, 2318, 95 S.Ct. Peltier (1975)). put 382 As it: the Court

If rule is to unlaw- exclusionary the the deter purpose conduct, search police by ful then evidence obtained a if it said suppressed only can be that the law should be officer or knowledge, may properly enforcement had be charged that the search was unconstitu- knowledge, with Amendment. tional under Fourth Id. Special Appeals recognized applicabili- The Court rule, knowledge/collective ignorance” of the “collective ty State, 477 4 see Albo v. 1075 n. (Fla.App.1985); So.2d nevertheless, rela- it was of the view because of the was tively days by small number which information or outdated, “this is a case of misconduct [not] exclusionary should negligence apply such that we 646, 584 at 1273. court Md.App. rule.” 85 A.2d The v. 280, 425 Riley, Commonwealth Pa.Super. relied 284 States, 381 (1981) and Childress v. United A.2d 816 A.2d (D.C.App.1977). addition, Maryland v. Garri- that argues, State

son, (1979); 1013, 94 L.Ed.2d 72 480 U.S. 107 S.Ct. 2793, 111 Rodriguez, Illinois v. Jimeno, v. U.S.-, and Florida (1990); L.Ed.2d 148 (1991)require affirmance of S.Ct. L.Ed.2d It re- Special contends that Appeals. Court of from computer liance on information its warrant received under Fourth conduct objectively “reasonable no Amendment and therefore occurred____” Fourth Amendment violation acted Cpl. Fogle “subjective Petitioner concedes that i.e. was not aware that faith,” he the warrant on the good he previously basis of made the arrest been which however, denies, disposi- served. Petitioner fact knowledge/collective igno- tive. “collective Applying argues rule, applicable, rance” which he too asserts is he knowledge that the Cpl. Fogle charged must with arrest. prior petitioner’s satisfied to had been according petitioner, to because required, That result is belonging from a computer information came outdated the warrant County Department, the Frederick Sheriff’s in Frederick it had turned over County, issued been execution, for and the warrant Department the Sheriff’s Depart- executed a member of the Sheriff’s had been this, that the arrest- petitioner maintains ment. From Moreover, reasonably. not act ing objectively officer did observes, explain why “the State does not reasonably require would County department Sheriff’s its records.” days update more than seven own Warden, Whiteley (1971), acting in one Wyoming county, L.Ed.2d 306 a sheriff for the arrest of tip, on an informant’s obtained a warrant fact, companion. along descrip- and a That with Whiteley men, tions of the over state-wide two were broadcast An on Wyoming county, relying radio. officer another companion. the arrested and his Evi- descriptions, Whiteley dence during uncovered the search incident to that arrest used, arrested, objection over that he was to illegally Whiteley. agreed convict The Supreme Court with White- warrant, that the ley, holding pursuant to which he was arrested, that, argument was invalid. It then the rejected he provided because was unaware of the factual basis to the magistrate warrant, for issuance of the the offi- arresting cer probable cause for a warrantless arrest. 401 U.S. In particular, at at 28 L.Ed.2d at 312. S.Ct. unpersuasive argument the Court found that the radio that, the assumption bulletin rendered reasonable whoever cause to direct the probable authorized the bulletin had arrest. 401 at 28 L.Ed.2d at 313. explained: It not, course, do that the Laramie Police question

We strength entitled to act on the of the radio bulletin. were called to aid other officers Certainly police officers are entitled to assume that executing arrest warrants magistrate requesting the officers aid offered requisite support independent information an judicial probable Where, however, assessment of cause. the con- true, out to trary illegal turns be an arrest otherwise challenge cannot insulated from by by the decision instigating officer to on fellow officers to make the rely arrest.

Id.

In United States v. Hensley, 105 S.Ct. (1985), a case decided its decision in 83 L.Ed.2d 604 after Leon, Whiteley holding. explicated Supreme Court There, issue in reliance on a stop, was whether by police department, flier” issued another of an “wanted the accused was on Relying automobile driven valid. was, it so Whiteley, long stop the Court held reliance on the “wanted flier” and the objective department issuing collectively possessed reason- 229-33, sufficient it. 469 suspicion justify able 83 L.Ed.2d at 612-15. The Court opined:

Thus, evi- Whiteley supports proposition when a search incident to an arrest during dence is uncovered bulletin, admissibility and reliance on a flier or its merely pos- on the officers who issued the flier turns whether cause to make the arrest. It does not probable sessed those on the flier were them- relying turn whether specific selves facts which led their col- aware era leagues to seek their assistance. an when criminal suspects increasingly increasingly likely are mobile and boundaries, a matter flee across this rule is jurisdictional the of information of common sense: it minimizes volume that must be transmitted to other concerning suspects police and enables one to act jurisdictions jurisdiction jurisdic- in reliance on information from another promptly tion. 681, 231, at 83 L.Ed.2d at 613-14.

469 U.S. at 105 S.Ct. of a Hensley Although emphasized po- reasonableness information an- department’s possessed by lice reliance on recognized also the limitation police department, other

215 department sending police if the Whiteley: expressed information, receiving police requisite not have does is not department sending on the reliance department’s 230-31, 469 challenge.” from “insulated 680-81, at 613-14. be based may cause probable In Maryland, police. knowledge the collective within information State, 270 Md. 76, 81, A.2d 310 v. King and Mobley 40 denied, 94 (1973), cert. 807 State, 517, 520, 211 v. 239 Md. Hopkins (1974); 564 L.Ed.2d State, 528, 539, v. Md. Johnson (1965); A.2d State, 237 Md. 479, 483, (1965); Mercer v. 765, 770 209 A.2d State, 233 Md. (1965); Farrow v. 206 A.2d State, Carter (1963); 434, 436-37 A.2d Thus, an while A.2d Md.App. warrant, of a strength on the make an arrest may officer him other certified to has been the existence of which obtained if the officers who department, in his officers or evidence information did not sufficient possess cause, on the warrant the arrest based probable to establish Carter, automobile, license specific with a illegal. an recovered number, police stolen. The tag reported stolen; how reported it was day on the same automobile not ever, prepared that had been report the incident later, was a two months Carter Approximately cancelled. were, according to the tags license a car whose passenger car that same as those on the report, stolen automobile arrested, He was stolen. reported had been previously control of with, and possession and convicted charged rule, knowledge the collective Applying narcotics. department police noted that “the Special Appeals Court report] was stolen vehicle have known that should [the vehicle had recovered the erroneous, officers police since 10, 1969.” January stolen on reported tags originally A.2d at 859. It concluded Md.App. its acted was information on which the because of a stolen report erroneous “outdated of an copy own on the same had recovered motor vehicle which 216 taken,” officer, of the arresting part it was

day team, knowledge report that the charged “must be with effect, of the Baltimore was, rescinded when members shortly the car after it Department Police recovered City the erroneous information trans- Accordingly, stolen. on the arresting basis which mitted officer] [to insufficient to show appellant clearly he arrested 156, This Md.App. 18 305 A.2d 860. probable cause.” not proposition “police may stands for the case thus are incomplete they incorrect or information when rely upon the records to remain uncorrected.” permitting at fault 2, LaFave, Seizure, omitted). & Vol. (footnote Search 3.5(d), 21-22 § decided before jurisdictions, from other whether

Cases 1121, 1125 F.Supp. 387 Leon, Mackey, United States v. e.g., Ramirez, 541, 194 34 Cal.3d Cal. (D.Nev.1975); People v. (1983); v. 454, 458, People 668 P.2d 764-65 Rptr. (Colo.1984); Treni- Mitchell, P.2d 993-94 State v. 678 Leon, (1978), or after dad, 595 P.2d 957 Wash.App. 23 353 Howard, Cal.App.3d Cal.Rptr. 208 v. People State, Peo- (1984); (Fla.App.1985); 477 So.2d 1071 Albo v. 87,152 Ill.Dec. Mourecek, Ill.App.3d ple v. (1991); Ill.App.3d People Joseph, v.

N.E.2d (1984); Tay- State v. 668, 83 Ill.Dec. 470 N.E.2d 35 Ohio lor, (La.App.1985); Gough, State So.2d (1986), are accord. 519 N.E.2d 842 App.3d Leon, makes Hensley is not affected Whiteley faith” fact, “good address the directly In cases that clear. rule knowledge of the collective in the context exception to the good exception faith applicability reject exclusionary rule. a case similar to sub example, for Joseph, supra, facts from those be- the Leon distinguishing after

judice, “from evolving it, problems the court noted the fore crimi- recorded and disseminated electronically reliance on date. 83 Ill.Dec. at files,” kept up not nal which are opined: 1306. It then 470 N.E.2d at arresting computer- officer received In the case at bar outstanding there was a ized information defendant, solely and he arrested defendant against the warrant, fact, The recalled on had been that basis. period this of time defendant During eleven earlier. days and, through no of his own to arrest fault subject in the information had been retained only system because longer no valid. See People Jennings, when it was 229, 430 446 N.Y.S.2d N.E.2d N.Y.2d (1982). that the exclusion- Supreme

In Court observed Leon rather designed police to deter misconduct ary rule is (468 magistrates. judges than to errors of punish 677). [897], 104 S.Ct. within case reflects a matter situation in the instant who failed police and control of authorities responsibility reflect defendant’s accurately records to update their we not age computerization, this do current status. be to sanction arrest appropriate believe it would here, authorities to allowing for law enforcement thereby making____ Moreover, it is on an error of their own rely opinion good-faith arresting our reliance officer, acting him upon provided information through channels, the intrusion police cannot overcome (some rights, made defendant’s fourth amendment upon omitted). citations on relying Joseph,

Id. So.2d Taylor, supra, added: have actu- police

It follows that once authorities logically (here invalidity of a of the warrant knowledge al fact charged Sheriff’s with which the ... Office must depart- on file in its records because of information ment), who with defendant all successive officers dealt of this fact. knowledge are held to have 1074, in Albo, 477 So.2d at which the court supra, See also commented: to a case inapplicability about the of Leon

Any doubt officer, although in individual arresting “good which the faith,” upon acts in reliance incorrect informa- objectively sources, supplied tion other has by dissipated been recent, post-Leon United States v. decision in by Hensley, [221], 83 L.Ed.2d 604 Hensley directly applied Whiteley probable cause- Terry stop investigate arrest rule to a effected to a prior crime. It held that a stop flyer based or bulletin is permissible when the officers who issued it a founded suspicion designated person that the had committed an But emphasized just offense. the court as the act their may permissibly knowledge, collective so are their they ignorance. restrained collective Leon, Indeed, itself, supports proposition that good faith is exception inapplicable: throughout opinion

References to “officer” this should not read too It is to narrowly. necessary consider the reasonableness not of the officers objective only who warrant, eventually executed but also of the officers it or information originally provided who obtained who probable-cause material to the determination. Nothing for opinion suggests, example, our that an officer could obtain a warrant on the basis of a “bare affidavit bones” are rely colleagues ignorant and then who of the circumstances under which the warrant was obtained Warden, Whiteley See conduct the search. U.S. 91 S.Ct. 1031 at 923 n. 104 S.Ct. at 3420 n. 82 L.Ed.2d at 698 n. 24.

Garrison, and Jimeno are also Rodriguez, inapposite. misappre In none of those Cases was the source hension of the facts information obtained from another police department officer or the result of a failure to Garrison, In update its own records. the search was however, warrant; to a search due pursuant facially valid to the of the the officers peculiar layout subject premises, mistakenly they authority believed that to search an was, area not covered the warrant. That belief 80-81, 107 held, 480 U.S. reasonable. objectively Court held, in Supreme Court 1015, L.Ed.2d at 78. S.Ct. at for the reasonable objectively that it was Rodriguez, a given by consent in reliance on the a search conduct who, she did that it later turned out notwithstanding person at -, so. 497 U.S. authority to have to do not, appeared Significantly, 111 L.Ed.2d at 161. to the possessed key consenting person, illegally, albeit ne premises, at the stated that she lived apartment and some before. days that she had done so glecting add is at -, 111 L.Ed.2d at 156. Nor 110 S.Ct. at It for arguments. stands State’s supportive Jimeno that, having advised proposition the rather unremarkable is it is being sought, as to consenting person what to whom consent for the officer reasonable objectively any covers the search of assume that the consent given to sought logically could fit. the evidence container which at -, 114 L.Ed.2d at 303. cause probable whether judice, the case sub outstanding depended upon accuracy existed computer. Department’s information in the Sheriff into the computer, accurate and current information Placing out, is a information just taking inaccurate or outdated Depart in the performed by personnel function Sheriff’s outdated, to remain Allowing inaccurate information ment. thus, being risk in citizens at of computer, placing basis, Joseph, see liberty, legal of without deprived 1306, therefore, of is the fault 470 N.E.2d at Ill.Dec. Department. the Sheriff’s that knowledge actual arresting officer had no longer no which he arrested sense, then, he

outstanding. subjective In that acted Nevertheless, he with knowl- chargeable good faith. officer in the Since an invalidity. of the warrant’s edge warrant, previously served Department Sheriff’s that it was outdated. department must have known Notwithstanding the applicability the “collective knowledge/collective ignorance” rule to the circumstances judice, sub a fact that the Court Special Appeals specifi cally acknowledged, 85 Md.App. A.2d at and which the State has not expressly denied, the State argues, as the Court of Special Appeals held, that this is not a “case of police misconduct or negligence,” implicating the Also, rule. exclusionary like the Court of Special Appeals, it asserts that “it is the amount of time which elapses between the time that the warrant ... becomes invalid and the time of the arrest which primarily determines whether probable cause exists for a valid Ott, warrant.” 85 Md. App. Thus, 584 A.2d at 1243. the State proffers the erroneous information remained in the “[b]ecause computer four only days longer have, than it should it is inappropriate to apply exclusionary rule.”

Neither nor Riley, Childress, the cases upon which the relies, State is persuasive. Both involved arrests based warrants although satisfied, previously had not been removed from the computerized “active” list. Riley, computer was that of the National Crime Infor- (NCIC), mation Center not the Philadelphia Police Depart- ment, and the court recognized that there was no indication the Philadelphia Police were responsible for NCIC’s failure to update the information. Riley, 425 A.2d at 816. Because police may reasonably rely upon an NCIC report of an outstanding arrest warrant and juvenile detainer making arrest, warrantless 425 A.2d at the court held that the information subsequently proven wrong and stale by only four days was insufficient to negate probable cause provided otherwise by the NCIC report. Id. Without adopting the merits of the distinction drawn by Riley—that the source of the erroneous information dispositive, is case sub judice, nevertheless distinguishable on that basis, i.e., seen, as we have the computer in this case was that of the which, Sheriffs Department, consequently, had responsibility updating the information it. relied, erro- Childress, the case which Riley of the District of Colum- information was the result neous failure a satisfied war- to remove Department’s bia Police list. 381 A.2d at 616. Notwithstand- from its “active” rant officer’s faith good held that “the ing, the court reasonable report on the radio and resultant reliance outstanding provided traffic warrants were that valid belief appellant to arrest Childress.” Id. White- probable cause asserted, it because controlling, not ley was It then at 617. existed”. A.2d legally case “never 617-18): (at opined of delays operation any to the

Administrative attendant in failure to police department area resulted metropolitan computerized from the the satisfied warrants remove the radio dis- list the officers received “active” before outstand- 18 that the warrants were patch November delay This of reasonable administrative combination ing. produc- on misinformation police reliance and reasonable accept- a situation which delay presents ed such a by nothing do to advance appellants’ would position ance of omitted) (Footnote rule. exclusionary purposes law, concluded that a a matter of the court Apparently weekend, of which occurred on days four two day delay, “police negligence.” administrative did not amount to n. 3. A.2d at 617-18 court never ad- persuaded. are not Childress

We by drawn Whiteley the critical distinctions dressed —wheth- knowledge that the chargeable is with department er the having at fault for not outdated information is information. More- the erroneous computer cleared the delay in that case was over, explained why never Furthermore, reached Chil- conclusion reasonable. some period for an anomalous situation presents dress to maintain accurate time, department’s failure records, explanation, lawfully place citizens may without a conclusion not to reach such prepared risk. We are without, least, at the very some indication that the depart- ment’s omission or failure is reasonable.3 is evidence, or, record devoid of matter, for that evidence, any attempt to introduce tending to establish the would, amount of time it should, or reasonably have taken to clear the computer of executed warrants. The Court of Special Appeals law, held as a matter of from reasoning upholding cases arrests based on similar outdated informa tion, delay that a “net” of four days4 clearing computer of outdated information is not sufficient to amount to police misconduct or negligence implicating application of the exclusionary determination, however, rule. That is not one made as may be a matter of question law. The lapse whether a of time was short so sufficiently reliance by police may properly be considered reason good able and in faith may be a mixed question of law and Moreover, fact. the burden to establish the facts underly ing that determination rests with the State. Stackhouse v. State, 203, 217, 298 Md. (1983)(Burden 468 A.2d of Bouldin v. proving exigent State); circumstances is on the State, 276 Md. (1976)(Burden 350 A.2d State to show that arrest prior lawful occurred to search thereto). alleged to be incident And the good faith excep- where, although 3. The distinction between the case the information in erroneous, police department's possession the known, was that fact was officer, but, rather, police party not to a to a third who did not erroneous, police inform the that the information was and the case upon where the they rely know or should know that information which significant. State, Md.App. erroneous is Carter v. Thus, 154 n. 305 A.2d 859 n. 1 the cases of United (en (5th Leon-Reyna, Cir.1991) banc), States v. De 930 F.2d 396 good exception applied which uphold faith a warrantless information, upon plate arrest based on reliance mistaken license State, (Tex.Cr.App.1991), good Durio v. 807 S.W.2d 876 in which the exception applied uphold faith reliance officers was, however, valid, facially support an invalid warrant which do not cases, Special Appeals' party Court of decision. In both a third actor, police department. was the not the noted, previously delay days, 4. As the total was seven but two of those days holiday. were on a weekend and a third was a of that burden. to excuse the State does not serve tion going forward to meet its burden failed State Since required reasonably amount of time as to the evidence with information, men- not to of outdated the computer to clear issue, the trial court on the persuasion the burden of tion evidence; consequently, judg- suppressed properly must be reversed.5 Appeals Special ment Court B. arrest, petitioner’s

Notwithstanding illegality chal standing lacked maintains the State argues, It automobile. companion’s of his lenge the search erred in assum therefore, Appeals of Special that the Court This must argument that he did. arguendo, albeit ing, car of a legality that at issue is premise on the proceed alia, inter to, search, citation qua see the State’s search car 421, Illinois, 128, 58 L.Ed.2d 387 99 S.Ct. Rakas v. 439 U.S. Acevedo, v. 500 U.S. (1978), and its reliance California New York v. (1991); 1982, 114 619 -, 111 L.Ed.2d S.Ct. 965, 960, L.Ed.2d Class, 475 106, 106 89 Opperman, v. South Dakota (1986); 81, 89-90 or unreasonable for whether it is reasonable 5. The determination computer must be made after to remain in a outdated information totality One of the circum- of the of the circumstances. consideration stances is whose comput- keep in the responsibility it is to information right point of citizens to be free We out where the er current. stake, rights infringement upon illegal from an arrest is at because tolerated, lightly the State’s burden is citizenry not be will dispatch a heavy. regard, that the with which In that we observe computer sys- putting into its police department in information acts dispatch guide with which it should serve as a as to the tem should required system. taking The State out of to act in information acknowledged argument not take a of time to at oral that it does lot certainly days, computer, not seven into a enter warrant information longer information days; take no to remove even four it should or put whether computer it in. We also wonder than it takes to from the holiday any to the has real relevance a weekend or the occurrence of delay clearing computer of a question of a of the reasonableness sector, private a in the Unlike a business outdated information. day, days ordinarily seven a week police department is a 24-hour a Therefore, required strong should be holiday operation. evidence computing delay. holidays justify omitting and weekends in 224 3096,

364, 368, 3092, 1000, (1976); 96 S.Ct. 1005 Md., 384, State, Doering v. 399, 1281, 313 545 A.2d (1988). Thus, it is understandable that the State asserts failed to that he petitioner legitimate show had a automobile. See Ricks v. in the expectation privacy State, denied, 11, 26, 612, 619, cert. 312 Md. 537 A.2d 832, 90, (1988). 102 L.Ed.2d 66 As to contention, it latter also did not says estab standing challenge showing lish his the search merely seat; show, that he was seated the driver’s he needed to addition, he produce had driven the car or to evi over, he had control or an expectation dence that of privacy in it. arrest,

The search in this case was one incident to held, 647, Special Appeals Md.App. Court of 584 A.2d State, brief, and the in its concedes. Such search is lawful to the same extent as the arrest pursuant which undertaken; if illegal, the arrest the search inci- State, illegal. dent to that arrest is also Trusty 308 Md. (1987); Stanley v. 661 n. 521 A.2d 750 n. State, 188, 191, (1962); Dipasq- 230 Md. 186 A.2d State, 574, 575, uale v. (1979); 406 A.2d Md.App. State, Dixon v. 19, 26, Md.App. 327 A.2d State, See also Bouldin v. 276 Md. 350 A.2d case, arrest, 132 In this for petitioner’s but the nor, would have had neither the occasion presumably, cause to conduct a search of the any according to the car — evidence, and his did companion nothing criminal in the officer’s Because it a presence. was as result of petitioner’s personal official intrusion on Fourth Amend- Illinois, Rakas v. 133-34, right, ment 439 U.S. at 99 at S.Ct. i.e. 425, L.Ed.2d at his to secure an right 58 from illegal person, seizure of his that the search was under- taken, which intrusion has been determined to have been illegal, petitioner must to out that the right point have is, arrest, search to his like illegal incident arrest and to to suppress move the fruits of that search.

225 States, 407, 471, 83 v. United 371 S.Ct. U.S. Sun In Wong made clear (1963), Supreme Court L.Ed.2d 441 9 tree”, 417, at id. 488, at poisonous “fruit of the 9. tangible trial materi- 454, physical, from L.Ed.2d at “bar[s] an or as a direct result of during either als obtained 416, 485, 371 at 83 at 9 S.Ct. unlawful invasion.” Thus, is “come at contraband L.Ed.2d at 454. where 488, at 83 illegality,” 371 U.S. primary] exploitation [a Maguire, Evidence 455, 417, quoting L.Ed.2d at at 9 S.Ct. Guilt, distinguishable a (1959),rather than from source 221 taint, therefore, sup- it must be from, and, purged of Id. against petitioner. not be used may and pressed refer illegality only of a does not exploitation primary search; it refer to an unlawful seizure of may an illegal to Erwin, 268, See, v. e.g., United States 875 F.2d person. (10th Cir.1989), recognized in which the court 269-70 “standing challenge to distinction to be drawn between The court standing challenge point- a search.” stop Sun, alia, 484, inter out, 83 Wong ed citing, 453, if 415, 9 L.Ed.2d at defendant “[e]ven car, the search of the if the standing challenge lacks is illegal, subject initial the seized stop was contraband poison tree’ doctrine.” 875 exclusion under 'fruit 2. F.2d 269 n. (10th Cir.1988) Hill, v. 855 F.2d United States an illegal seized incident to

the court excluded evidence gone treatise writers have even arrest. Other cases and Durant, v. 1180, 1182 F.2d United States further. E.g. (8th Cir.1984) passenger that a an automo (recognizing illegal, that it was stopped on the basis may, bile uncovered as a direct result suppress move to evidence Williams, (5th F.2d United States v. stop); Haworth, (same); State v. Cir.1979) 106 Idaho 679 P.2d Manke, People v. (1984) (same); 181 Ill. 1123-24 (1989) Ill.Dec. 537 N.E.2d App.3d Eis, (Iowa 1974) v. (same); N.W.2d 225-27 State 707, 703 P.2d. Epperson, (same); 237 Kan. State 62, Smith, 106 A.D.2d 525, 483 N.Y.S.2d People v. (1985); 226 Scott, v. (same); State (1984) 59 650 P.2d Or.App. DeMasi, State v. (1982) (same); 419 A.2d 294- grounds, vacated other (R.I.1980), (1981) (same); see also LaFave 69 L.Ed.2d 948 9.1, Criminal Procedure Israel, (1985), which §

it is said: standing object does have to to passenger

that pro- intrudes his Fourth Amendment conduct which If person. unreasonable seizure of his against tection of the car or the stopping passenger’s either the removal sense, in a Fourth Amendment from it are unreasonable has to those passenger standing object then surely suppressed any constitutional violations and have evi- found in the car which is their fruit. dence whether, circum- question aside the under these Setting stances, petitioner legitimate expectation priva- had a car, interest companion’s clearly being in his he has an cy illegal person, free from an seizure of his a matter Cortez, See United States concern. legitimate 690, 694-95, that “legitimate expectation As to has a [he] intru- governmental free from the unreasonable would be DeMasi, 419 A.2d at 294. sion occasioned [his arrest].” case, Hill is illustrative. argued In that the defendants and, therefore, the search that their arrests were unlawful also ar- illegal. They conducted incident thereto was also pursuant of a search conducted to a gued that the fruits of information search issued on the basis derived illegal suppressed from their arrests should have been tree. 855 F.2d at 666. The court poison fruit of the questions that its determination of those turned recognized Id. addressing Before legality on the of the arrests. issue, however, government’s argument rejected standing challenge did not have one of the defendants search, he was of a houseboat legality which explained: did not own. It interest is neces- showing privacy hold that no of a

We of this case. The main thrust of sary under the facts Hill’s argument is that his warrantless arrest violated the Fourth Amendment and that all evidence obtained as a of the result arrest is therefore tainted and must be Hill suppressed. clearly may challenge the of his validity own arrest. We hold that he may therefore claim that evidence found as a fruit of the arrest should be exclud- ed.

Id. To like effect is in Epperson, which the court recog- nized that:

Epperson’s right challenge the search stems not from the fact that he was previously passenger a in the motor vehicle, but because he is a person who was unlawfully seized, and stopped and because the search followed as a consequence thereof.

703 P.2d at 770.6 Rakas, the issue was whether the Fourth Amendment rights of the occupants automobile, of an stopped because it was believed to the be car in a get-away used who robbery, did not assert a proprietary or possessory interest the car contents, or its had been violated so that could they object to the search of the car and the seizure of a rifle and shells that the search uncovered. The defendants did not chal- lenge the of legality stop or automobile contend had they been seized when told to they get were out of car. See 439 99 S.Ct. at suggested 6. A noted poisonous commentator has "fruit of the analysis always appropriate tree” is not when a search is conducted "incident” to an arrest: person surrounding When the search of only or the area has its justification being "incident to” the arrest under Chimel v. Cali- (1969) [395 23 L.Ed.2d 685 then ] fornia unquestionably sup- the evidence found in the search must be pressed if the antecedent arrest violation of the Fourth evidence, Amendment. This is direct rather than derivative there is no occasion be concerned about the limits of the fruit of poisonous tree doctrine. LaFave, Seizure, 4 W. Search and A Treatise on the Fourth Amendment 11-4(d), (2nd Whether, therefore, 1987). ed. § the evidence is derivative, may challenged viewed as direct or because the predicate discovery illegal for its was an arrest. concurring). It these (Powell, was under at 405-06 J. Supreme judg- that the Court affirmed the circumstances Court. The Court Appellate ment of the Illinois challenged is whether the search “question view that the Fourth Amendment rights and seizure violated who seeks to exclude ob- criminal defendant evidence it.” 439 U.S. S.Ct. at during tained showing made no they L.Ed.2d 399. It held because in the expectation of any legitimate privacy “they car or area under the seat glove compartment 148, passengers,” U.S. at they merely which were defendants’ Fourth at 58 L.Ed.2d at S.Ct. not could rights they had not been violated Amendment or its car contents. assert those of owner Thus, at 394-95. 99 S.Ct. at L.Ed.2d analyzed more appropriately the Court found issue than right Amendment rather under Fourth substantive standing. notions of 439 U.S. on the basis of traditional Scott, 650 L.Ed.2d at 399. also See then, analysis In that the Rakas regard, P.2d at 987. inappo- reach here. It is also the result we consistent with case, arrest, by of his since, in the instant virtue site rights of the were Fourth Amendment personal Williams, 213-14; Haworth, 679 F.2d at infringed. 1124; DeMasi, 419 A.2d at 294. P.2d at APPEALS JUDGMENT OF THE COURT OF SPECIAL REVERSED; TO THAT COURT CASE REMANDED THE FURTHER REMAND TO WITH INSTRUCTIONS THE COURT FOR FREDERICK CASE CIRCUIT TO THE CHARGES FOR DISMISSAL OF COUNTY PETITIONER. AGAINST THE OF AND IN COURT IN THIS COURT

COSTS BY BE PAID FREDERICK APPEALS TO SPECIAL COUNTY. C.J.,

MURPHY, dissents.

MURPHY, Judge, Chief dissenting. case,

On the facts of this giving full sway to the intended reach “good faith” exception so clearly articulated Leon, United States v. (1984), I

L.Ed.2d 677 would affirm the judgment for the reasons stated the Court of by Special Appeals. The arrest- ing officer’s conduct was objectively reasonable. To ex- clude the evidence in this case does not further the ends of rule in exclusionary any appreciable While I way. share the majority’s concern that the police-operated com- puter promptly should reflect the satisfaction of an out- warrant, I standing do not believe that the in this case delay amounts to such misconduct negligence or as war- rants the result reached Court. See e.g., Connelly State, v. 322 Md. 589 A.2d 958 Nothing Warden, Whiteley upon which the majority places such stress, mandates the reversal of judgment in this case.

Case Details

Case Name: Ott v. State

Court Name: Court of Appeals of Maryland

Date Published: Jan 13, 1992

Citation: 600 A.2d 111

Docket Number: 31, September Term, 1991

Court Abbreviation: Md.