Bell v. State

⁴⁹ MOYLAN, Judge. We approach the decision we are called upon to make in this case with the same discomfort with which we approached a similar decision in Dixon v. State, 23 Md.App. 19, 20-21 , 327 A.2d 516 (1974): “With the possible exception of the ‘dropsy’ cases, no aspect of Fourth Amendment litigation has afflicted law enforcement with the yawning credibility gap wrought by inventory searches.” (footnote omitted). See also Manalansan v. State, 45 Md.App. 667, 668 , 415 A.2d 308 (1980). The appellant, Kevin Bell, was convicted by a Baltimore City jury of the possession of cocaine with intent to distribute.

On this appeal, he raises two contentions: 1) that at the pretrial hearing on his Motion to Suppress Physical Evidence as having been seized in violation of the Fourth Amendment, the hearing judge erroneously denied his Motion; and 2) that the evidence was not legally sufficient to support the conviction. The Standard of Appellate Review The Fourth Amendment judgment we are called upon to make is whether the ostensible inventorying that produced the incriminating evidence in issue was a bona fide inventory or was a mere subterfuge for an investigative search. In Manalansan v. State, supra, we discussed the appropriate standard of review, 45 Md.App. at 669 , 415 A.2d 308 : “It is, furthermore, clear that in assessing the ultimate constitutional fact of whether a police intrusion into an automobile is a bona fide inventory or a subterfuge for an otherwise unpermitted investigative search, we are required to make our own independent, reflective judgment. Walker v. State, 12 Md.App. 684, 694-695 , 280 A.2d 260 ; Gardner v. State, 10 Md.App. 233, 245 , 269 A.2d 186 ; Reagan v. State, 4 Md.App. 590, 601 , 244 A.2d 623 .

Judge Liss stated this ⁵⁰ standard of review most recently in Herring v. State, 43 Md.App. 211, 220-221 , 404 A.2d 1087 [1979]: ‘In order to justify the policeman’s conduct in this case, we would be required to conclude from our own independent examination of the record that the detective acted in •good faith in making the alleged inventory search, and not as a subterfuge to conduct a warrantless search for investigative purposes.’ See also Cleekley v. State, 42 Md.App. 80 , 399 A.2d 903 [1979].” We had earlier employed the same standard of review in Dixon v. State, where we observed, 23 Md.App. at 36 , 327 A.2d 516 : “That the trial court found as a ‘fact’ that there was a bona fide inventory does not preclude us from making our own independent judgment and it does not limit us to a ‘clearly erroneous’ standard of review.” The Purpose of an Inventory It is also necessary to bear clearly in mind the exclusive purpose of an inventory search. It is not investigative in purpose and is not designed to further in any way the goal of criminal detection. Nothing less than probable cause to believe that evidence is present will ever serve as adequate justification to make a search for evidence. The police inventorying of the contents of an automobile (or other repository) is, indeed, not even a part of their investigative function.

It is an aspect, rather, of their community caretaking function. It is designed to safeguard the personal property of individuals whose property might otherwise be exposed to undue risk by virtue of some police action. It is also designed to serve the closely-related function of safeguarding the police from false claims of theft under circumstances where they are required to take the property of others into their custody. In Manalansan v. State, we discussed in some depth the limited nature of police inventorying, 45 Md.App. at 668 , 415 A.2d 308 : “We begin with the bedrock proposition that the inventorying of the contents of an automobile is not a constitution ⁵¹ ally-permitted investigative technique.

A search for evidence within an automobile may only be undertaken pursuant to a validly issued search and seizure warrant, Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971); warrantlessly where there is probable cause to believe that the automobile contains evidence of crime coupled with an exigency excusing the warrant requirement. Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925); warrantlessly where all or some of the automobile lies within the reach, lunge or grasp of an arrestee, Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969), and Peterson v. State, 15 Md.App. 478 , 292 A.2d 714 ; or warrantlessly pursuant to valid consent, Schneckloth v. Bustamonte, 412 U.S. 218 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973). The inventorying of the contents of an automobile on the other hand, serves a noninvestigative purpose.” In Waine v. State, 37 Md.App. 222, 232 , 377 A.2d 509 (1977), Judge Thompson for this Court summarized the then-recent Supreme Court decision of South Dakota v. Opperman, 428 U.S. 364 , 96 S.Ct. 3092 , 49 L.Ed.2d 1000 (1976), and set out the noninvestigative purpose of the automobile (or other) inventory: “Three purposes which serve to legitimatize warrantless police intrusions into the interior of an automobile following its seizure were listed: (1) protection of the police from danger; (2) protection of the police against claims and disputes over lost or stolen property; and (3) protection of the owner’s property while it remains in police custody. Inventory searches, therefore, are not conducted in order to discover evidence of crime.

They are conducted in accordance with police departmental policy to list what is in police custody. Probable cause to seek a search warrant would be irrelevant.” The Facts in this Case The testimony at the suppression hearing strongly suggests that the police were looking for evidence of narcotics viola ⁵² tions. At approximately 5:30 P.M. on May 15, 1991, Officers Mark Daugherty, William Brown, and Attlay Williams were driving an unmarked car in the vicinity of Woodland and Homer Avenues in Baltimore City. The officers described the neighborhood as a high crime area generally and an area known for heavy narcotics activity specifically.

The officers observed a group of four or five young men, the appellant among them, “scatter” at the approach of the three strangers. The appellant walked away from the rest of the group and approached the passenger door of a “red Chevy Geo.” According to Officer Daugherty, the appellant made “a hand movement as [if he were] placing something in the vehicle.” He then shut the car door and dropped a plastic bag next to the car. The officers did not immediately move in on the appellant or any of the other members of the group. They continued to patrol the general area and, approximately ten minutes later, returned to the intersection of Woodland and Homer Avenues.

Upon their return, the appellant was standing next to the open passenger door of the red Chevy Geo. At the approach of the “strangers,” he closed the door and dropped what appeared to be “a vial, a white object” into the three-inch window opening. At that point, the three officers got out of their automobile and placed the appellant under arrest. A search of his person revealed a “black diamond watch” and a beeper.

The police testimony itself revealed that their focus on the automobile was investigative in nature from the very outset. Immediately after arresting the appellant, the officers asked him to consent to the search of the car. According to their testimony, he refused and told them that they would have to obtain a search warrant if they desired to look into the car. Even in the face of that denial of consent, the police interest in the car did not abate.

Officer Brown walked over to the car and observed a vial of white powder lying in open view on the floor of the front passenger seat. A supervising officer, Sergeant Cappucino, arrived on the scene and conferred with the officers. Ostensibly under the authority of the Carroll Doctrine, the police ⁵³ warrantlessly opened the door of the automobile and retrieved the vial of white powder that had been spotted on the floor. That apparently ended the Carroll Doctrine probe into the automobile.

Officer Brown continued his testimonial narrative: “Once we did that, we called for a wagon and began an inventory of the vehicle since we were going to tow it.” Between the passenger seat and the driver’s seat, Officer Brown found a “Fila” bag. Inside the Fila bag were several baggies. The first contained five bundles containing ten vials each. A second contained “bundles of ten each wrapped in a rubber band.” A third baggie contained “three bundles of ten each and one bundle with nine vials.” Officer Brown testified that the substance in the various containers had been “packaged for street distribution.” Chemical analysis revealed the substance to be cocaine.

The Initial Carroll Doctrine Probe We have no difficulty upholding the initial and limited police entry into the automobile to retrieve the vial containing white powder. It was investigative in nature and was based upon probable cause. The neighborhood was known to the police as one with a high level of drug activity. The appellant was one of four or five young males who immediately dispersed at the approach of “strangers,” quite possibly the police.

At the first approach of these “strangers,” the appellant made a furtive hand movement as if placing something in the automobile, immediately shut the door, and then dropped what later turned out to be an empty plastic bag onto the ground beside the car. Ten minutes later, when the “strangers” approached the second time, the appellant was again observed standing beside the open passenger door. On that occasion, he dropped what appeared to be “a vial, a white object” into the window opening. Looking through the transparent window of the automobile, as was their right, the police observed on the floor a vial containing white powder.

It was inside the window where the appellant had just been seen throwing something in. The appellant, moreover, was in ⁵⁴ possession of a beeper, a common instrumentality in the narcotics traffic. Cf. Best v. State, 79 Md.App. 241, 260 , 556 A.2d 701 (1989).

Under the totality of the circumstances, the police had, we hold, the necessary probable cause required by the Carroll Doctrine to justify a warrantless entry into the automobile for the specific purpose of retrieving the vial of suspected cocaine. Exigency, the other requirement for a warrantless Carroll Doctrine entry, was demonstrably present. A parked car containing possible narcotics in a zone of high narcotics activity was a goose waiting to be plucked. At the very least, it was a repository of possible inculpatory evidence that would have been long gone before the police team could secure a search warrant.

The single vial of white powder was legitimately seized. It, however, was not the essential object of