Preston v. StatePreston v. State
- Reporters:
- , ,
- Before:
- Salmon
On April 12, 2000, a McDonald’s fast food restaurant located on Eastern Avenue in Essex, Baltimore County, Maryland, was robbed by a lone gunman wearing a ski mask. Two days after the robbery, appellant, Brian Preston, was arrested for the McDonald’s robbery pursuant to a valid arrest warrant. The arrest was made as appellant arrived at work and just after he had alighted from a Plymouth Neon automobile (hereinafter “the Plymouth”). Shortly after his arrest, appellant was taken to police headquarters, and the Plymouth was towed to a “crime lab/garage” owned by Baltimore County, where it was searched.
As a result of searching the passenger compartment of the Plymouth, the police found several items that incriminated appellant:
1. A twenty-two caliber Beretta handgun, later identified as the weapon used in the robbery; 1
2. A blue knit ski mask;
3. A bag containing deposit slips, register receipts, petty cash vouchers, monopoly games, and other items belonging to McDonald’s. The dates on these items ranged between March 31 and April 11, 2000.
Prior to trial, appellant filed a motion to suppress the items recovered from the Plymouth. After an evidentiary hearing, the motions judge ruled that the warrantless search of the Plymouth at the police garage was valid as a search incident to appellant’s arrest. Appellant was thereafter convicted by a jury of the armed robbery of the McDonald’s as well as two related charges: first degree assault and use of a handgun in the commission of a crime of violence.
I. QUESTIONS PRESENTED
1. Did the lower court err in denying appellant’s motion to suppress the evidence found in the Plymouth’s passenger compartment?
2. Assuming, arguendo, that the search should have been ruled invalid, was the denial of the motion to suppress harmless beyond a reasonable doubt?
We answer the first question in the affirmative, the second in the negative, and reverse.
II. EVIDENCE PRESENTED AT THE SUPPRESSION HEARING
On the day following the robbery of the McDonald’s, Detective Joseph Caskey of the Baltimore County Police Department questioned Shirlita Jackson, the McDonald’s manager. During interrogation, Ms. Jackson said that she and appellant had conspired to commit the armed robbery and that the robbery plan was originated by appellant. According to Ms. Jackson’s confession, appellant executed his plan by using a silver gun along with a black gun in robbing her (and two other McDonald’s employees) on the morning of April 12, 2000. Based on the information provided by Ms. Jackson, a warrant for appellant’s arrest was issued.
On April 14, 2000, several Baltimore County police officers were waiting for appellant to show up for work at a restaurant located in the White Marsh mall. Appellant
The police merely “glance[d]” at the interior of the Plymouth but did not search it while it was on the White Marsh parking lot. Instead, the vehicle was towed to the crime lab/garage and searched. Detective Caskey testified as follows:
Question [Prosecutor]: Why did you tow it [the Plymouth] back to the garage?
Answer: We towed it back to the garage so we could search it at the headquarters as opposed to searching it in the middle of the White Marsh mall parking lot.
Question: Why? Would there have been a problem if you searched it on the White Marsh mall parking lot?
Answer: It is just more convenient to have it done at headquarters where we didn’t draw a crowd. We were drawing people around us, and we didn’t want to do that. We wanted to take our time to search this car and not spend hours on the parking lot.
At the time the Plymouth was towed to the police garage, the police knew that the vehicle was owned by Brenda Marcus, who was the mother of appellant’s girlfriend.
The only testimony produced at the suppression hearing as to when the Plymouth was searched was provided during cross-examination of Detective Caskey. After establishing that he was not present during the search of the Plymouth, Detective Caskey was asked by defense counsel:
It [the Plymouth] was probably searched at least two or three hours after the arrest, wasn’t it?
Answer: I can look at the property sheets. I would assume so, yes.
The property sheets were not admitted into evidence at the suppression hearing.
Detective Todd Ford, who was one of the three officers who searched the Plymouth, testified that a duffle bag was found on the front passenger seat of the Plymouth. Detective Ford could not remember if the bag was opened or closed prior to the search. Inside the bag was a CD case, and inside that case the police found a twenty-two caliber Beretta pistol. Elsewhere in the bag, the police discovered a “black CO-2 type BB gun.” 2
The prosecutor argued at the suppression hearing that a warrant to search the Plymouth was not necessary because the search was made incident to appellant’s arrest. The prosecutor did not rely on any other exception to the warrant requirement.
During the hearing, the motions judge made it clear that he believed that, if the police could search the Plymouth at the place of arrest, the police could also search it at the police garage. For reasons discussed infra, we hold that he was wrong.
III. FIRST ISSUE
A. Search Incident to Arrest Exception
“[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are
per se
unreasonable under the Fourth Amendment — subject only to a few specifically established and well delineated exceptions.”
Katz v. United States,
The issue in
Preston
was whether the search of the vehicle was lawful.
Id.
at 366-67,
Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime. This right to search and seize without a search warrant extends to things under the accused’s immediate control, and, to an extent depending on the circumstances of the case, to the place where he is arrested. The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime — things which might easily happen where the weapon or evidence is on the accused’s person or under his immediate control. But these justifications are absent where a search is remote in time or place from the arrest. Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest. Here, we may assume, as the Government urges, that, either because the arrests were valid or because the police had probable cause to think the car stolen, the police had the right to search the car when they first came on the scene. But this does not decide the question of the reasonableness of a search at a later time and at another place. The search of the car was not undertaken until petitioner and his companions had been arrested and taken in custody to the police station and the car had been towed to the garage. At this point there was no danger that any of the men arrested could have used any weapons in the car or could have destroyed any evidence of a crime — assuming that there are articles which can be the “fruits” or “implements” of the crime of vagrancy. Nor, since the men were under arrest at the police station and the car was in police custody at a garage, was there any danger that the car would be moved out of the locality or jurisdiction. We think that the search was too remote in time or place to have been made as incidental to the arrest and conclude, therefore, that the search of the car without a warrant failed to meet the test of reasonableness under the Fourth Amendment, rendering the evidence obtained as a result of the search inadmissible.
Id.
at 367-68,
The Supreme Court held that the search was reasonable because it was closely related: (1) to the reason the defendant was arrested, (2) the reason the car was impounded, and (3) the reason the police retained possession of the car.
Id.
at 61,
“lawful custody of an automobile does not of itself dispense with constitutional requirements of searches thereafter made of it,” ibid., the reason for and nature of the custody may constitutionally justify the search. Preston was arrested for vagrancy. An arresting officer took his car to the station rather than just leaving it on the street. It was not suggested that this was done other than for Preston’s convenience or that the police had any right to impound the car and keep it from Preston or whomever he might send for it. The fact that the police had custody of Preston’s car was totally unrelated to the vagrancy charge for which they arrested him. So was their subsequent search of the car. This case is not Preston, nor is it controlled by it. Here the officers seized petitioner’s car because they were required to do so by state law. They seized it because of the crime for which they arrested petitioner. They seized it to impound it and they had to keep it until forfeiture proceedings were concluded. Their subsequent search of the car — whether the State had “legal title” to it or not — was closely related to the reason petitioner was arrested, the reason his car had been impounded, and the reason it was being retained. The forfeiture of petitioner’s car did not take place until over four months after it was lawfully seized. It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it. It is no answer to say that the police could have obtained a search warrant, for “the relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.” Under the circumstances of this case, we cannot hold unreasonable under the Fourth Amendment the examination or search of a car validly held by officers for use as evidence in a forfeiture proceeding.
Id.
at 61-62,
The case at hand is factually akin to
Preston,
not
Cooper.
Here, as in
Preston,
there was no suggestion that the police had a right to impound the Plymouth or to
Six years after
Cooper,
the Supreme Court decided
United States v. Edwards,
Citing
United States v. Caruso,
Caruso is typical of most cases in the courts of appeals that have long since concluded that once the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing, on the one hand, and taking of the property for use as evidence, on the other. This is true where the clothing or effects are immediately seized upon arrival at the jail, held under the defendant’s name in the “property room” of the jail, and at a later time searched and taken for use at the subsequent criminal trial.
Id.
at 807,
Three and one-half years after
Edwards, United States v. Chadwick,
may be conducted without a warrant, and they may also be made whether or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy evidence. The potential dangers lurking in all custodial arrests make warrantless searches of items within the “immediate control” area reasonable without requiring the arresting officer to calculate the probability that weapons or destructible evidence may be involved. United States v. Robinson,414 U.S. 218 [,94 S.Ct. 467 ,38 L.Ed.2d 427 ] (1973); Terry v. Ohio, supra. However, warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the “search is remote in time or place from the arrest,” Preston v. United States,376 U.S. at 367 [,84 S.Ct. 881 ], or no exigency exists. Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the propertyto seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.
Id.
at 14-15,
The Court held in
Chadwick
that a search at police headquarters of a padlocked two-hundred-pound foot locker that
was being transported by appellant in a motor vehicle when he was arrested was not “incidental to” Chadwick’s arrest because the search was conducted “more than an hour after federal agents gained exclusive control of the footlocker and long after respondents were in custody.”
Id.
at 15,
Cases decided subsequent to
Chadwick
have distinguished between searches of items “closely associated with the arrestee” made at the police station and searches of luggage and other articles of personal property not immediately associated with the person of the arrestee. The former may be searched long after the arrest, while the latter may be searched only incident to the suspect’s arrest. The pertinent law was summarized in
Curd v. City Court of Judsonia, Arkansas, et al.,
The timeliness requirement is ... satisfied. The search took place at the station house about fifteen minutes after Curd was arrested. This delay could be fatal if, for example, a large piece of luggage were opened and inspected without a warrant. See United States v. Chadwick,433 U.S. 1 , 15,97 S.Ct. 2476 ,53 L.Ed.2d 538 (1977) (station house search of two hundred pound footlocker over an hour after arrest too remote in time and place for warrantless search incident to arrest); United States v. $639,558 in U.S. Currency,293 U.S.App.D.C. 384 ,955 F.2d 712 , 715-16 (D.C.Cir. 1992) (luggage search half an hour after arrest not contemporaneous). The timeliness requirement for “luggage or other personal property not immediately associated with the person of the arrestee” is, in other words, constitutionally fairly strict. See, e.g., Chadwick,433 U.S. at 15 ,97 S.Ct. 2476 .
On the other hand, searches of the person and articles “immediately associated with the person of the arrestee,” are measured with a different, more flexible constitutional time clock. Compare Chadwick,433 U.S. at 15 ,97 S.Ct. 2476 , and United States v. Schleis,582 F.2d 1166 , 1170 (8th Cir.1978) (en banc) (search of briefcase at station house not valid search incident to arrest); with Edwards,415 U.S. at 803 ,94 S.Ct. 1234 (search of clothing after an overnight stay in jail is a valid search incident to arrest), and United States v. Phillips,607 F.2d 808 , 809-10 (8th Cir.1979) (search of defendant’s wallet at station house a “substantial period of time” after his arrest valid search incident to arrest). Searches of the person and those articles “immediately associated” with the person may be made either at the time of arrest or when the accused arrives at the place of detention. Edwards,415 U.S. at 803 ,94 S.Ct. 1234 . Unlike luggage, courts considering the question have generally concluded that a purse, like a wallet, is an object “immediately associated” with the person. See, e.g., United States v. Berry,560 F.2d 861 , 864 (7th Cir.1977), vacated on other grounds,571 F.2d 2 (1978); United States v. Venizelos,495 F.Supp. 1277 , 1281-83 (S.D.N.Y.1980); and State court cases within the Circuit — Sumlin v. State,266 Ark. 709 ,587 S.W.2d 571 , 577 (Ark.1979) (en banc); State v. Woods,, 116 (Mo. Ct.App.1982); State v. Hershey, 637 S.W.2d 113 371 N.W.2d 190 ,192 (Iowa Ct.App.1985). But see United States v. Monclavo-Cruz,662 F.2d 1285 , 1290 (9th Cir.1981) (purse like suitcase and briefcase, not clothing; search of purse at station house not valid as incident to arrest). In United States v. Graham,638 F.2d 1111 (7th Cir.1981), the Seventh Circuit went a step further, holding that a purse was part of the defendant’s person and that accordingly, a search warrant authorizing a search of the person covered the officer’s search of the purse:
The human anatomy does not naturally contain external pockets, pouches, or other places in which personal objects can be conveniently carried. To remedy this anatomical deficiency clothing contains pockets. In addition, many individuals cany purses or shoulder bags to hold objects they wish to have with them. Containers such as these, while appended to the body, are so closely associated with the person that they are identified with and included with the concept of one’s person. To hold differently would be to narrow the scope of a search of one’s person to a point at which it would have little meaning.
Id. at 843 (footnote omitted).
In the case at hand, there can be no doubt that the police could have searched the Plymouth’s passenger compartment contemporaneous with appellant’s arrest. In
New York v. Belton,
Searches have been deemed to be “essentially contemporaneous” with an arrest when made within a few minutes after the arrest even if the suspect, at the time of a search, has been placed in a police cruiser and handcuffed.
See State v. Fernon,
In the case at bar, the State failed to prove that the search of the Plymouth was made “essentially contemporaneously” with appellant’s arrest. Although the State did not prove exactly when the search occurred, it evidently occurred “at least two or three hours” post-arrest. A delay of that duration cannot be said to be “essentially contemporaneous.”
See Chadwick, supra; see also Commonwealth v. Alvarado,
Appellee cites
Terrell v. State,
The State also relies on
Holland v. State,
In
Holland
the defendant was lawfully arrested and taken to the police station.
Id.
at 535,
The
Edwards
opinion,
The courts of appeals have followed this same rule, holding that both the person and the property in his immediate possession may be searched at the station house after the arrest has occurred at another place and if evidence or crime is discovered, it may be seized and admitted in evidence. Nor is there any doubt that clothing or other belongings may be seized upon arrival of the accused at the place of detention and later subjected to laboratory analysis or that the test results are admissible at trial.
The Supreme Court went on to explain that a delayed “search incident” does not intrude any more on a protected
This was and is a normal incident of a custodial arrest, and reasonable delay in effectuating it does not change the fact that Edwards was no more imposed upon than he could have been at the time and place of the arrest or immediately upon arrival at the place of detention. The police did no more on June 1 [the day after Holland’s arrest] than they were entitled to do incident to the usual custodial arrest and incarceration.
It was clear, moreover, that the property subjected to the delayed search was already in the lawful custody of the police and, therefore, not immune from examination by them:
It must be remembered that on both May 31 [the date of Holland’s arrest] and June 1 the police had lawful custody of Edwards and necessarily of the clothing he wore. When it became apparent that the articles of clothing were evidence of the crime for which Edwards was being held, the police were entitled to take, examine, and preserve them for use as evidence, just as they are normally permitted to seize evidence of crime when it is lawfully encountered.
Id.
at 537-38,
Because the Edwards rule only applies to searches at the station house of “the person and the property [of the suspect] in his immediate possession” as opposed to delayed searches of personal property not immediately associated with the person of the arrestee, Holland does not aid the State because the article seized — the room key — was in Holland’s pocket when it was seized and thus immediately associated with his person. Our opinion in Holland is in complete accord with the approach taken elsewhere. The relevant status of the law was succinctly summed up in Wayne R. LaFave, 3 Search and Seizure — A Treatise on the Fourth Amendment 110-12 (3d ed.1996), viz:
[O]n incident-to-arrest grounds, it has been held that at the station (provided, of course, that the arrestee is still in custody) the police may search through the arrestee’s pockets, wallet, other containers on the person, and even underclothing, may require the arrestee to strip and may seize incriminating objects thereby revealed. It is not necessary that there be advance probable cause that such objects will be found. Indeed, it may be said more generally that the courts assume that this search may be just as extensive as could have been made under Robinson at the scene of the custodial arrest, and this is so even where the arrestee’s access to the object searched was terminated between the time of arrest and the time of the search. That is, the scope of the search at the station is not limited to items then in the “immediate control” of the defendant; it is sufficient that the items were on his person at the time of arrest. The notion seems to be that Robinson recognized that anything on the person was “fair game” for a search, and that the opportunity of the police to search should not be more limited merely because there may have been reasons making a full search there impractical or because the police opted for the less humiliating alternative of a search in the privacy of the stationhouse.
Id. (footnotes omitted) (emphasis added).
Here, the search at issue had nothing whatsoever to do with the search of an arrestee at the stationhouse, nor are we here concerned with the search of an arrestee’s
B. Probable Cause Exception
As an alternative argument, the State maintains that, even if the search was not “incident to” appellant’s arrest, the police nevertheless had “probable cause” to believe that guns would be found in the vehicle. “If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment ... permits police to search the vehicle
without more”.
Maryland v. Dyson,
According to the evidence presented at the suppression hearing, at the time the Plymouth was searched, the only information the police had concerning that automobile was:
1. It was owned by the mother of appellant’s girlfriend; and
2. appellant was driving the vehicle at the time of his arrest.
No evidence presented at the suppression hearing indicates that the police, at any time, knew whether the armed robber had used a motor vehicle in the commission of the crime, and so far as was shown in the record, the police had no knowledge as to whether appellant usually drove the Plymouth or even whether he had
ever
driven the Plymouth prior to the date of his arrest. Although the police had learned from Ms. Jackson, the McDonald’s manager, that two handguns had been used in the armed robbery, no one testified at the suppression hearing that the police had any particular reason to suspect that guns — or any other inculpatory evidence linking the appellant to the robbery — might be found in the Plymouth. Under these circumstances probable cause was not shown.
See Carroll v. State,
The State relies on
State v. Ward,
The instant matter is not a clear cut case and, obviously, it would have been much more helpful had the affidavit contained more detail. The issue of the validity of this search has been examined since 1992 in two separate cases, at three levels of court, with the result that seven judges have concluded that there was probable cause and six judges have concluded that there was not. Seemingly the instant matter is a classic illustration of the “doubtful or marginal cases” referred to by the Supreme Court in United States v. Ventresca, the resolution of which “should be largely determined by the preference to be accorded to warrants.” 380 U.S. [102] at 109, 85S.Ct. [741] at 746, 13 L.Ed.2d [684] at 689 [1065]. See also Mills v. State, 278 Md. at 280 ,363 A.2d at 501 .
Id.
at 389,
The case at hand is distinguishable from Ward in at least three important respects:
1. The police knew that Ward owned a particular vehicle and the warrant was to search that vehicle — here, we don’t know whether appellant owned any automobile, nor do we know whether he had ever driven the vehicle searched at any time prior to the morning of his arrest;
2. In Ward the magistrate, through the use of inferences drawn from facts in an affidavit, could have inferred that the suspect had not yet disposed of the murder weapon prior to the issuance of the warrant,350 Md. at 377 ,712 A.2d 534 , whereas in the case at hand, there were absolutely no facts from which the inferences (that the robber had not yet disposed of the guns or that guns would be found in the car) could have been drawn;
3. In Ward, the police applied for and were issued a warrant to search the automobile. Id. at 375,712 A.2d 534 . Here, no search warrant was applied for or issued. Therefore, there is no reason to give a “close call” to the State due to “the preference to be accorded to warrants.”
Because of the aforementioned differences, Ward is inappo-site. The State simply failed to meet its burden to show that it had probable cause to search the Plymouth.
C. Inventory Search
The State also contends that the search of the automobile was justified as an inventory search. This contention will not detain us long. Detective Caskey testified that the vehicle was searched for evidence. That testimony was uncontradicted and is fatal to the State’s claim that the police were merely conducting an inventory when they discovered the guns and other incriminating items.
See Manalansan v. State,
IV. SECOND ISSUE
The State contends, in the alternative, that, even if the trial judge erred in allowing it to introduce the gun, ski mask, and the receipts, vouchers, etc., admission of those items was harmless beyond a reasonable doubt. We disagree.
Admittedly, the State had a very strong case against the appellant even without admission of the items found in the Plymouth. The State proved that appellant confessed that he robbed the McDonald’s after he had been advised of, and waived, his Miranda rights. 3 In addition to the confession, Detective Caskey testified, without objection, that Sheritta Jackson told him that she and appellant had conspired to rob the restaurant. Nevertheless, as strong as the State’s case would have been without the items illegally seized, it simply cannot be said, beyond a reasonable doubt, that appellant was not harmed when the State introduced into evidence the fruits of their search. Ms. Jackson was not called as a witness at trial, and neither of the two victims of the armed robbery were able to identify appellant as the robber.
In lieu of eyewitness identification of appellant as the robber, the State introduced into evidence the twenty-two caliber Beretta pistol found in the Plymouth. The Beretta was then identified by one of the
JUDGMENT REVERSED; COSTS TO BE PAID BY BALTIMORE COUNTY.
Notes
. Although it was not introduced at trial because it did not incriminate appellant, the police also found a black CO-2 type BB gun.
. The other items found in the vehicle mentioned, supra, were not discussed by either witnesses or counsel at the suppression hearing.
.
Miranda v. Arizona,