Benbow v. State

CHARLES E. ORTH, Jr., Judge, Specially Assigned. I A stop by a Maryland State Police trooper of a car driven by Reginald Gregory Benbow for speeding parlayed into a ten year sentence. The stop led to his arrest. The arrest led to a search of his person and car.

The search led to the recovery of contraband in his possession. The contraband in his possession led to his conviction at a court trial in the Circuit Court for Baltimore County of possession of cocaine with intent to distribute. The conviction led to the imposi ³⁹⁶ tion of a sentence of imprisonment for a term of ten years. 1 Benbow attempted to interrupt the domino effect of the stop at the point of his arrest. He claimed that his warrant-less arrest was illegal and, therefore, the searches and seizures of the contraband were unreasonable, offending the constitutional guarantees. 2 He filed a motion to suppress the evidence seized by the police.

We look to the hearing on the motion for the details of how the stop for speeding burgeoned into a ten year term of imprisonment. Maryland State Police Trooper Kevin Welkner testified that on 26 November 1988, he “was working radar assignment on [route] 795 southbound ... just south of McDonogh Road” in Baltimore County. He stopped a black BMW car which was going 93 miles an hour in a 55 miles-an-hour zone. Welkner informed the driver why he was stopped and asked for the driver’s operator’s license and registration card.

The driver said that he did not have his operator’s license with him. 3 At Welkner’s request, the ³⁹⁷ driver accompanied Welkner to the trooper’s car so the trooper could obtain further information and run “a license check.” The driver “identified himself as Reginald Gregory Benbow” and supplied his date of birth. Welkner “ran a check on him through Maryland and Virginia” 4 by the name and date of birth the driver gave. “At that time it was indicated that he was suspended in Virginia.” Welkner immediately “informed Benbow that he was under arrest for driving while suspended.” The trooper searched Ben-bow on the scene and later Benbow’s car at the police barracks. He found cocaine and a large sum of money on Benbow’s person and cocaine and a “trace” of marijuana in the car. On cross-examination, defense counsel made no inquiry about the events leading to the arrest except to ask the year, model, and color of Benbow’s car.

Benbow testified in his own behalf. We summarize his testimony. He was driving a black BMW on 26 November 1988 and was stopped by the police. The trooper asked for his operator’s license and registration card.

He told the trooper that he had a valid Maryland driver’s license, but had lost the license card. A certified copy of his Maryland Department of Transportation, Motor Vehicle Administration, driving record was admitted in evidence without objection. See Appendix A, infra. Benbow was sitting in the police car when Welkner “ran a check on him through Maryland and Virginia.” Benbow said that he heard the operator who called back report that the Maryland driver’s license was valid.

Benbow insisted that he also had a Virginia operator’s license in good standing at the time he was stopped. He claimed that the information the trooper received over the radio that the Virginia license was suspended was incorrect. ³⁹⁸ On cross-examination, Benbow verified that he did not have any operator’s license in his possession when he was stopped — “I had lost them.” A certified copy of Benbow’s Virginia driving record was admitted in evidence upon proffer by the State to counter Benbow’s assertion that his Virginia license was not suspended. See Appendix B, infra. II A The Maryland License Benbow’s Maryland driving record shows that he enjoyed a valid Maryland operator’s license at the time of his arrest.

Thus, the information that Benbow alleged he heard the dispatcher impart to the trooper was, in fact, correct. At the hearing, the trooper made no mention of any information he had received concerning the status of Benbow’s Maryland driving privilege nor was he asked about it. If the State had wished to rebut Benbow’s assertion that the trooper had been told that Benbow had a valid Maryland license, it could have recalled the trooper to the stand to say, if he could, that the dispatcher did not inform him that Benbow had a valid Maryland license or that, if the dispatcher did say it, the trooper did not hear it. In that event, the judge need not have believed Benbow, but, as the record stands here, Benbow’s testimony was totally unrebutted and unrefuted.

Benbow’s version was not inconsistent with what the trooper said and was consistent with the Motor Vehicle Administration’s record received in evidence. The judge neither expressly nor impliedly rejected Benbow’s testimony on the matter; the judge simply did not address it. On this state of the record, we believe that we must treat Benbow’s version as being accepted, that is, that the trooper had been informed before the arrest that Benbow was the holder of a valid Maryland license. As we read the arguments of the prosecutor, the State proceeded on the basis that Benbow’s version was true. ³⁹⁹ B The Virginia License The State interprets the Virginia record as establishing that Benbow did not have a valid operator’s license in that state at the time of his arrest.

Certainly, it sets out that as of 2 March 1989 Benbow’s driver license status was “not licensed — eligible.” It also shows that on 7 October 1987 there was a “suspension” for a “term” ending either 14 or 15 April 1988 for failure to pay a fine. But then it indicates that Benbow had not paid the fine until 8 February 1989, at which time “contl” ended by compliance with an order which had been mailed to him. Benbow averred that his license had been reinstated on 14 April 1988 when the term of suspension expired. He stated that an officer who arrived on the scene of his arrest knew this because that officer advised him how to pay the outstanding fine and get back his license, and that he had paid it before his arrest.

That officer did not testify on the matter. C As we have stated, the trial judge did not resolve the question of the status of Benbow’s license at the time of the arrest. The judge declared that the issue was not whether Benbow’s operator’s license was suspended. “That really,” the judge asserted, “is not the crucial element.” It was the judge’s view that “[t]he crucial fact is whether or not the trooper had probable cause to arrest. The trooper may be wrong ultimately but the question is, was there probable cause to arrest.” The judge observed the circumstances facing the trooper were that he has got a guy going 93 in a 55, guy who says I do not have my license.

He calls and Virginia says this guy is suspended, is it probable, reasonable for that Trooper to ... think that the man is breaking the law in Maryland? I think he has probable cause to believe that the man is ⁴⁰⁰ breaking the law, whether or not [the] man is or is not[,] so, therefore, the arrest is legal. The judge denied the motion to suppress. As we construe the judge’s ruling, he did not question that the trooper was told that Benbow had a valid Maryland license.

Despite that, however, the judge believed that, because the trooper had been informed that Benbow’s license to drive in Virginia had been suspended, even though that information may have been incorrect, the arrest was legal as based on probable cause. Thus, the judge reasoned, the search and seizure incident to the arrest was reasonable, and the contraband and evidence recovered was admissible. The judge was wrong. Lacking a factual finding by the trial judge as to the status of Benbow’s privilege to operate a motor vehicle under the authority of Virginia, we assume, for the purpose of decision, a scenario which is most against Benbow’s interests, namely, that the information received by the trooper was correct — his Virginia license was not in good standing.

Ill Of course, as the trial judge stated, the trooper had “probable cause to believe that [Benbow] was breaking the law.” Benbow was clearly in violation of the law — he was driving 93 miles an hour in a 55 miles-per-hour zone. Maryland Code (1977, 1987 RepLVol.) § 21-801(a) and § 21-801.1 of the Transportation Article (TR) proscribe such conduct, and TR 27-101 makes a violation a crime. 5 The trooper had the duty, as well as the authority, to stop Benbow when the radar screening disclosed that he was driving in excess of the maximum allowable speed. But Benbow’s speeding did not give the trooper the authority to arrest, either under the ⁴⁰¹ common law or by statute. 6 The validity vel non of Ben-bow’s arrest is the heart of this appeal, for on it depended the legality of the search and and the admissibility of the items seized. We said in Ricks v. State, 322 Md. 183, 188 , 586 A.2d 740 (1991): The Fourth Amendment protects individuals from unreasonable searches and seizures.

A warrantless search or seizure is per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions. Gamble v. State, 318 Md. 120, 123 , 567 A.2d 95 (1989); Stackhouse v. State, 298 Md. 203, 209 , 468 A.2d 333 (1983); Howell v. State, 271 Md. 378, 379 , 318 A.2d 189 (1974). A search incident to a valid arrest is one of the limited exceptions to the warrant requirement. Chimel v. California, supra [ 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969) ]; Colvin v. State, 299 Md. 88, 98 , 472 A.2d 953 , cert. denied, 469 U.S. 873 [ 105 S.Ct. 226 , 83 L.Ed.2d 155 ] (1984).

The power of a police officer to make a warrantless arrest for a violation of the Maryland Vehicle Law is precisely spelled out in § 26-202 of the Transportation Article. See Appendix C, infra. Speeding is not an arrestable offense. For speeding, the power of a police officer does not extend beyond the issuance of a citation.

Section 26-201(a)(l) gives a police officer the authority to charge a person with a violation of the Maryland Vehicle Law “if the officer has probable cause to believe that the person has committed or is committing the violation.” Subsection (b), however, commands, “A police officer who charges a person under this section shall issue a written traffic citation to the person charged.” Benbow was also in violation of the Maryland Vehicle Law in that he did not have his license with him contrary to § 16-112(b). And, of course, he was unable to display his license upon demand by the trooper as required by ⁴⁰² § 16-112(a), (b), and (c). But, these violations do not carry the power to arrest. In any event, as we have seen, the trooper did not arrest Benbow for these violations.

Benbow was immediately placed under arrest when the trooper received information that Benbow’s Virginia license was suspended. The arrest, the trooper told Benbow, was “for driving while suspended.” At the time Benbow was arrested, § 16-303 prohibited a person from driving in this State while “his license or privilege to drive is refused in this State or any other state,” subsection (a); or while the status of his license in any other state is “canceled,” subsection (e); or “suspended,”