Barrow v. State

ALPERT, Judge. The facts of this appeal read like a multi-issue hypothetical question from a criminal procedure law school examination. First, we must determine the legality of a search and seizure of a getaway vehicle. Then, we are asked to assess the constitutional propriety of pre-trial and in-court witness identifications of Ronald Larry Barrow, appellant.

For those who believe there are no modern day heroes, we introduce Carmen Lee Sturgill, a 39 year-old, lifelong resident of Cecil County, Maryland. Shortly before 7:00 a.m. on January 15, 1983, Sturgill was sitting in his car in the parking lot of the Hollywood Diner in Elkton, Maryland when he observed a man walking into the diner’s vestibule. ¹⁷⁶ This man was “acting like he was using the telephone, but he wasn’t.” Thereupon, Sturgill saw the man enter the diner. The man was white and wearing a green OD-type parka with fur trim on the collar. Sturgill noticed the man was standing with his arms extended.

The man was pointing a gun. Sturgill realized he was witnessing an armed robbery. Moments later the robber exited the diner and walked across the parking lot towards Melbourne Boulevard. To avoid detection, Sturgill stepped out of his car and crouched by the driver’s door as the robber walked by.

Fearlessly, Sturgill reentered his car in pursuit of the fleeing felon. Sturgill attempted to drive across the grass median on Route 40, “got stuck,” put his car in reverse, “and got unstuck.” At this point, the robber turned around, recognized Sturgill’s intentions, and ran up Melbourne Boulevard away from the highway. At this point, Sturgill noticed a car parked on the crossover median on Melbourne Boulevard. Sturgill approached the car, felt its warm hood, detected heat from the grille area and concluded that the vehicle had been driven to the diner by the robber and that it might be a potential getaway car.

To avoid any such use, Sturgill flattened the car’s left front tire. Undaunted, Sturgill continued to pursue the robber on Melbourne Boulevard into a residential area known as Thompson Estates but eventually lost track of him. Sturgill then returned to the diner where he met Trooper Robert Perrot of the Maryland State Police. Sturgill recounted his observations and his attempt to capture the robber.

Sturgill showed the Trooper the now-unmoveable car. Trooper Perrot felt the hood; it was warm to the touch. The warmth was particularly noticeable because the previous night had been snowy and cold. The automobile was parked approximately one-tenth of a mile from the diner and could not be seen from the diner as it was blocked by several trees.

Trooper Perrot believed that the car had been purposefully concealed. The car’s doors were closed but unlocked. Trooper Perrot espied an orange envelope on ¹⁷⁷ the front passenger seat. The trooper recognized it as the type of envelope used by the Motor Vehicle Administration to send license and registration renewals.

He picked up the envelope, opened it, and discovered the car was registered to Alice Deibert Barrow, appellant’s mother, of Elkton, Maryland. Also inside the envelope was a driver’s license in the name of William Heine of Newark, Delaware. A picture of Mr. Heine was impressed upon this license. Keys to the vehicle were located under the gas pedal.

Trooper Perrot seized the registration, driver’s license and the keys. He contacted Delaware authorities to see if they could locate Mr. Heine at the address listed on the license. The trooper and Sturgill continued to search the area but failed to locate the robber. Trooper Perrot returned Sturgill to the diner and then proceeded with another trooper to Alice Barrow’s house.

While at the diner, the trooper showed the Heine driver’s license to Sturgill and to Esther Anderson and Adeline Larkin, waitresses on duty during the robbery. The three witnesses were asked whether the man pictured on the license was the robber. Larkin responded, “It looks like it. He has the tinted glasses and his hair was long like it was when I saw him earlier.” As Sturgill had never seen the robber’s face, he could not make an identification from the license.

Anderson indicated that the photograph “[djidn’t look like him [the robber].” At the Barrow house, now about 8:00 a.m., Ms. Barrow told police that her son, the appellant, had been operating her car the night before and that he arrived home, drunk, at approximately 2:30 a.m. Ms. Barrow got her son from his bedroom. Appellant told the troopers that his mother’s car had broken down the night before and that he arrived home around 2:30 a.m. Trooper Perrot noticed that the photograph on the William Heine Delaware license looked “exactly the same as Mr. Barrow.” When questioned about the license, appellant admitted that he had fraudulently obtained the Delaware license by using his photograph with a friend’s birth certificate.

The troopers informed appellant ¹⁷⁸ that they were investigating the robbery at the Hollywood Diner, and appellant agreed to go back to the diner “to get this matter cleared up.” The troopers drove appellant to the diner. Only one eyewitness to the robbery, Esther Marie Anderson, was there at that time. Although Trooper Perrot recalled no conversation with Anderson, Anderson later testified that she was asked whether she recognized appellant and that she “didn’t know for sure” but believed “he looked like the guy.” Trooper Perrot and appellant left the diner and went to police barracks. Appellant’s picture was taken and a photo spread was arranged for Larkin and Sturgill at 11:00 a.m. later that morning.

Sturgill and Larkin drove together to police barracks. On the way to the station, the two witnesses saw appellant sitting in a police cruiser. They continued to drive to the police barracks two car lengths behind the police car. When they arrived, Larkin parked her car in the visitor’s section of the parking lot.

She and Sturgill watched as appellant was removed from the police car. Larkin observed appellant’s walk. She recognized it; the robber had walked in the same manner. Once inside the station, Larkin selected appellant’s photograph from an array and stated that the man pictured had robbed the diner.

Again, Sturgill was unable to identify the man he had observed in and chased from the diner. Later that afternoon, Ms. Anderson arrived at the station to give a statement. She told police that she knew the man who had robbed the diner. She had met him one year before when she went to Alice Barrow’s house to look for antique furniture.

Although Trooper Perrot believed that Anderson had not been shown the photo array, Anderson stated that she chose appellant’s photo from a group and identified the man as the robber. Two days later, Jack Kyle, a truck driver, frequent visitor to the Hollywood Diner, and witness to the robbery, was ¹⁷⁹ asked to review a photo array at police headquarters. He selected appellant as the robber. Appellant was charged with armed robbery and related offenses.

Prior to trial, appellant moved to suppress the driver’s license, registration and set of keys from his mother’s car. Appellant further sought to preclude the pre-trial photograph identifications made by Anderson and Larkin and the (potential) in-court identifications by Anderson, Larkin and Kyle. After a hearing and arguments, Judge H. Kenneth Mackey denied appellant’s motions. The case came on for trial before a jury on July 14, 1983 (Judge Donaldson C. Cole, Jr., presiding).

Appellant was convicted of armed robbery and use of a handgun while committing a crime of violence. Aggrieved at this result, appellant has noted a timely appeal and asks us to consider whether the motions judge erred by failing to suppress the evidence seized from his mother’s car as well as the various pre-trial and in-court identifications. I. Warrantless Search and Seizure of the Getaway Automobile Appellant hyperbolically states that “if the search and seizure of appellant’s mother’s automobile is upheld, every unlocked and parked car on a street in Elkton is unprotected by the Fourth Amendment.” Appellant reasons that Trooper Perrot was without probable cause to suspect that a nexus existed between the car and its contents and the Hollywood Diner robbery. Appellant has understated the actions and observations of Carmen Lee Sturgill.

At the suppression hearing Trooper Perrot testified that he met Sturgill when he arrived at the diner to investigate the robbery. Sturgill recounted his attempts to capture the robber. He described how the robber had headed initially toward the car, but that the robber had altered his escape route upon noticing Sturgill. Sturgill provided the trooper with the robber’s physical appearance, the robber’s escape route, and Sturgill’s discovery of what he believed to be a ¹⁸⁰ possible getaway vehicle.

Trooper Perrot accompanied Sturgill to the immobilized automobile. He confirmed Sturgill’s belief that the car had recently been used by feeling the car’s warm hood. The trooper then noticed the envelope on the front passenger seat. His experience told him that sort of envelope contained car registration renewals.

Trooper Perrot picked up the envelope and inside discovered the appellant’s mother’s car registration and appellant’s fake Delaware driver’s license. A motor vehicle may be searched without a warrant where police have “probable cause in the constitutional context to believe that the vehicle contains the fruits, instrumentalities, or other evidence of crime.” Mobley and King v. State, 270 Md. 76, 80 , 310 A.2d 803 (1973) (and cases cited therein), cert. denied, 416 U.S. 975 , 94 S.Ct. 2003 , 40 L.Ed.2d 564 (1974). This exception to the Fourth Amendment warrant requirement is justified because the exigent circumstances caused by the inherent moveability of a motor vehicle makes the obtaining of a warrant impracticable. Id. [270 Md.] at 80-81, 310 A.2d 803 (citing Coolidge v. New Hampshire, 403 U.S. 443, 459-460 , 91 S.Ct. 2022, 2034-2035 , 29 L.Ed.2d 564 (1971); Carroll v. United States, 267 U.S. 132, 153 , 45 S.Ct. 280, 285 , 69 L.Ed. 543 (1925)).

Probable cause exists for a warrantless automobile search when facts and circumstances known to police are such “as would warrant a man of reasonable caution [to believe] that the vehicle contained articles lawfully subject to seizure.” Id. [270 Md.] at 81, 310 A.2d 803 . In order to satisfy the probable cause requirement, there is no necessity that an investigating officer have personal knowledge that the car contains fruits, instrumentalities or evidence of a crime; the probability of criminal activity is enough. Id. We think the record in this case contains evidence supporting a finding of probable cause that the vehicle was related to the Hollywood Diner robbery and that it could contain or was in fact evidence of that crime.

Our determination is based upon the vehicle’s concealed location and ¹⁸¹ proximity to the diner, evidence of its recent use, and, most of all, Carmen Sturgill’s observation of the fleeing robber’s attempt to reach the car immediately after the crime. We observe, however, that this warrantless search does not squarely fit into the traditional “automobile exception” due to Sturgill’s apparent immobilization of the car. Here, there was no apparent reason to fear that the unoccupied car and its contents would disappear. Still, other (non-Carroll) exigent circumstances abounded.

Trooper Perrot was hot on the trail of an armed robber, he had reason to believe that the armed robber had concealed his getaway car within 500 feet of the scene of the crime, and that the robber might still be in the neighborhood. If time was ever of the essence, it was here! While Sturgill’s act of flattening the car’s tire may have lessened the ability to remove the car, we are unconvinced it lessened the urgency of the situation. There still existed a great need to apprehend the armed robber who was associated with the car.

It was not practicable to delay the investigation in order to obtain a search warrant. These facts illustrate a newly-recognized type of exigency to be considered in conjunction with probable cause when applying the automobile exception to the warrant requirement — the getaway car exigency principle. This doctrine was first articulated in United States v. Robinson, 533 F.2d 578 (D.C.Cir.1975) (en banc), cert. denied, 424 U.S. 956 , 96 S.Ct. 1432 , 47 L.Ed.2d 362 (1976). In Robinson , police located what they had probable cause to believe was the getaway car to a bank robbery.

The car was parked on a city street, its doors were locked, its occupants had departed. Police coverged on the vehicle, looked through the window and saw a bundle of clothing with a blue coat on top in the passenger’s seat. Fifteen minutes later, a victim of the robbery identified the type of car as the one used by the robbers. The car was unlocked and money and the revolver were found under the blue coat.

The search was held to be legal. ¹⁸² Although this case is not governed by the Carroll “automobile exception” for cars stopped on a highway, it does present a situation in which time was of the essence and it was “not practicable to secure a warrant.” Carroll, 267 U.S. at 153 , 45 S.Ct. at 285 . There was need to proceed as quickly as possible to apprehend the robbers who had used this as the getaway car in an armed bank robbery consummated about an hour prior to the search. There was strong probable cause to believe this was the getaway car. Bank robbers known to have been armed were at large, posing current dangers to the police and other citizens.

An immediate search of the car could well produce the information needed to speedily apprehend the culprits. Delay to obtain a warrant could have impeded a promising police investigation and conceivably provided the added time needed by the bank robbers to avoid capture altogether. Cf United States v. Ellis, 461 F.2d 962, 966 (2d Cir.), cert. denied, 409 U.S. 866 , 93 S.Ct. 162 , 34 L.Ed.2d 115 (1972). The case is within the spirit, though not the text, of the “hot pursuit” exception established in Warden v. Hayden, 387 U.S. 294 , 87 S.Ct. 1642 , 18 L.Ed.2d 782 (1967).

We therefore hold that this getaway car case entails exigent circumstances that justify a warrantless search of the car for clues as to identify or location of suspects. The pertinent factors are much like those set out by this court in Dorman v. United States, 140 U.S.App.D.C. 313, 319-21 , 435 F.2d 385, 391-93 (en banc, 1970), as showing “urgent need” justifying a warrantless nighttime entry into a private home to effect an arrest. As in Dorman , we have a grave offense; a clear showing of probable cause; reasonable belief that the suspects are armed; a likelihood that the suspects will escape if not speedily apprehended, and peaceable entry. This case lacks the element of “strong reason to believe that the suspect is in the premises being entered,” which was stressed in Dorman as justifying a warrantless entry into the suspect’s home to make an arrest.

But in the case of a car on the ¹⁸³ street there is both lesser expectation of privacy than in a home, and the entry into a car believed on strong probable cause to be the getaway car is justified, even though the suspect is plainly not now inside, in order to get clues that will aid location and apprehension of the suspect. Id. at 583-84 (footnotes omitted). Other cases applying the getaway car exigency principle include Shreeves v. United States, 395 A.2d 774, 785-86 (D.C.App.1978); Gaddis v. State, 267 Ind. 100 , 368 N.E.2d 244, 247-48 (1977); Barnes v. State, 406 So.2d 84, 85 (Fla.App.1981). The most factually analogous case we have found is Gray v. State, 596 P.2d 1154 (Alaska 1979).

In that case, police were informed that a supermarket robbery had been committed by three people, two males and one female, and that the robbers had fled the scene in a stationwagon. Soon thereafter, the police stopped a vehicle matching this description. A woman alighted from the vehicle and police ordered the other two occupants out of the car. While one complied, the other moved behind the driver’s wheel of the car and sped away.

The police left the two robbery suspects, and set chase after the stationwagon. During the course of this chase, the driver rolled out of the car, and the car crashed into a residence. The driver was captured and police returned to the stationwagon. The car was searched and a purse was observed.

The purse was opened; it contained names and addresses which led police to the other participants in the robbery. Upon applying the precepts of Robinson , the Supreme Court of Alaska held that the search was permissible. A grave offense had been committed; there was probable cause that the stationwagon was the getaway vehicle; its occupants were armed; the two suspects left behind would flee if not quickly