Bouldin v. State

⁵⁴⁶ Lowe, J., delivered the opinion of the Court. Franklin Delano Bouldin was convicted by a jury in the Criminal Court of Baltimore of possession of heroin with intent to distribute and possession of a manufactured article (a motorcycle) from which the serial number had been removed, defaced or obliterated. He appealed those convictions with the primary thrust of his contention being that the evidence introduced was the fruit of an illegal warrantless search. Officer Aston testified for the State that he had been routinely called to investigate a serious motor vehicle accident.

Upon arrival at the scene he observed a motorcycle lying on its side behind an automobile, the rear of which obviously had been struck by the cycle. Appellant was lying in a semiconscious state about twenty-five feet away from the cycle. He was being attended by personnel from an ambulance already at the scene. At appellant’s request, as he was being placed in the ambulance an attendant picked up appellant’s “black leatherette flight bag type of suitcase .. . which had been on the motorcycle with him,” and put it in the ambulance with appellant.

The ambulance then proceeded with its occupants to the Union Memorial Hospital. Meanwhile, back at the scene, Officer Aston sought identification of the injured appellant by radioing the license tag number to the Department of. Motor Vehicles. In a matter of moments he was advised that the “license plate and the license plate only had been reported stolen under Baltimore City Complaint Number 2K27183.

At that time I responded to the hospital. . . Mr. Semel: Would you stop there, Officer? The Court: Well, was the defendant -subsequently placed under arrest because of this? A Yes, Your Honor.” Appellant withdrew his initial objection to that testimony when it was argued that such testimony could not be used “to actually prove that [the license plate] was stolen,” but ⁵⁴⁷ “only to establish why he [appellant] was arrested.” The court then explained to the jury why the evidence was admitted: “THE COURT: All right.

Well, members of the jury, I wanted to explain to you that this last answer was permitted into evidence with regard to the report that the plate was stolen only to explain why the Defendant was arrested by the police officer and for that purpose only.” Before Officer Aston “responded to the Union Memorial Hospital ...” he attempted to ascertain a vehicle identification number from the motorcycle but found that it was not visible. There were “fresh filing marks upon the motor block in the vicinity of where the serial number should have been.” Officer Aston, with a twofold purpose in mind, then went to the hospital where appellant had been taken “ ... to check on Mr. Bouldin’s condition and to place him under arrest.” Upon arrival he found him lying on a roll-type stretcher. His clothes had been removed and placed on a shelf beneath him, along with the black flight bag. Although Mr. Bouldin was unconscious, he was being cleaned up by an attendant preparatory to examination by a doctor.

Officer Aston then: “ . . . took the clothing to try and ascertain some identification of Mr. Bouldin looking for a driver’s license or any kind of identification. And in the jacket that Mr. Bouldin was wearing in the upper breast pocket I recovered an amount of U.S. currency and a bundle of glassine bags wrapped in a rubber band, a later — a later count revealed twenty glassine bags, each containing a similar looking white powdery substance which I had reason to believe through my — ” Within five minutes of this discovery, an attendant gave Officer Aston some personal effects which had been taken from appellant for safekeeping which included appellant’s wallet and identification. In the meantime the officer ⁵⁴⁸ telephoned the “on call narcotics officer ..for assistance with “a narcotics case at the hospital and would they please respond, which they did.” “A When Officers Dugent and Thornton responded to the emergency room of Union Memorial, I made a more thorough search of the patient’s property in company with Officers Dugent and Thornton. One piece of the patient’s personal property being the black leatherette flight bag.

In one zipper compartment of the flight bag I found an additional thirteen bundles of glassine bags containing a white powdery substance. The total count was three hundred and twenty-four bags in the suitcase along with the twenty bags that were in his coat pocket.” Officer Aston was then asked as a narcotics’ expert to explain what he meant by “a bundle.” “A A bundle of heroin is the most common, convenient way that heroin is packaged for I’d say middle level street sale. The addict would rarely see one and would never have occasion to buy one. A bundle would be something that only a dealer would have in his possession.

It is a number anywheres from twenty to thirty bags. One bag street level now is about one, one and a half percent heroin content is the average dose for a heroin addict. And, like I said, the average bundle is twenty to thirty bags.” Aside from the previously mentioned withdrawn objection, all of the preceding testimony came in without objection. Most significantly, appellant had at no time filed a motion to suppress.

To the contrary appellant had expressly declined to object either to the arrest or the search. Appellant withdrew the objection he had made when the officer was about to testify that he radioed the Department of Motor Vehicles because, in his view, if the evidence were offered “for the purpose of establishing the arrest, of course, ⁵⁴⁹ I don’t think I would have an objection.” The court then asked: “THE COURT: Well, is there a challenge as to the legality of the arrest and search? MR. SUTLEY: No. No, not really.

But, if it comes in just for that, to establish just an arrest —” The agreement resulted in the limiting instruction heretofore noted. Although no motion to suppress was filed and no objection to the arrest or search imposed, when the State reached the point of offering the physical evidence, appellant asked: “May we approach the bench, Your Honor? ” At the bench, the following colloquy ensued: “MR. SUTLEY: Mr. Semel I thought was going to introduce this through another officer but he is ready to introduce the evidence now. I would like to question the officer as to the admissibility and perhaps we ought to excuse the jury for four or five minutes.

THE COURT: Well, there is a motion to suppress this evidence or you want to question him first? MR. SUTLEY: Well, I really wasn’t sure how the testimony was going to come out because the officer has refused to speak to me. MR.

SEMEL: He did? MR. SUTLEY: Yes. So, that is why I — the report doesn’t say much at all so that is why I didn’t file a frivolous motion, not knowing what he was going to say.

But, I will ask a few questions. I do have some concerning his testimony. MR. SEMEL: Well, I guess that is his right.” The court excused the jury and permitted a lengthy interrogation of Officer Aston by appellant, at the conclusion of which it summarized the evidence so elicited, assumed the existence of either a motion to suppress or ⁵⁵⁰ objection, then ruled on it.

Among other things the court concluded: “Now, these two factors, that is, the stolen tag, or at least what at this point the officer believed to be a stolen tag, plus the obliteration of the number on the vehicle certainly gave him probable cause to place the Defendant under arrest. The officer did not go through all the formalities of the arrest because the man was being worked on on the table in the hospital, but he was for all intents and purposes under arrest in connection with these two items which the officer had found out .... My ruling is that the search of these items was proper because, first of all, it was incident to a lawful arrest; secondly, the officer had the right to try and find out at least from the clothing some identification of the victim; and, thirdly, under the principle of Waugh versus State in 20 Maryland Appellate 682 this black bag or satchel was the kind of object which could very well have been removed and its contents could have been destroyed and under the theory of the Waugh case the officer did have the right to go through that bag and search it under these circumstances. I am not sure whether there — assuming you did make a formal motion to suppress this evidence, Mr. Sutley, I am going to deny the motion and I will overrule the objection.” The State then laid the foundation for introduction of the physical evidence by having the witness identify it.

When it was actually offered appellant entered his first objection “for the record.” Although no reason was expressed, he disclaimed any concern over the chain of custody of the evidence. The evidence was admitted over the objection. On appeal it is now claimed that “This evidence, and testimony concerning its seizure .. .” should not have been admitted because the seizure was violative of appellant’s Fourth Amendment rights. Appellee asserts various theories of admissibility ⁵⁵¹ including waiver, emergency search, Vauss v. United States,