Bouldin v. State

Murphy, C. J., delivered the opinion of the Court. The appellant Franklin Delano Bouldin was found guilty by a jury in the Criminal Court of Baltimore of possession of heroin with intent to distribute and with possessing a manufactured article (a motorcycle) from which the serial number had been removed, defaced, or obliterated; he was sentenced to 10 years’ imprisonment. In Bouldin v. State, 26 Md. App. 545 , 338 A. 2d 404 (1975), the Court of Special Appeals affirmed the convictions in a detailed opinion written for the Court by Judge Lowe. We granted certiorari to consider the legality of the police search of Bouldin’s personal effects made at a time when he was in an unconscious condition in a hospital emergency room.

The evidence adduced at the trial showed that Bouldin was badly injured in an accident while riding his motorcycle on the afternoon of November 22, 1973. He was lying in the street in a semiconscious condition when Officer Donald Aston arrived on the scene to investigate. Aston observed ⁵¹³ that a small flight bag which had been lying in the street was returned to Bouldin at his request by an ambulance attendant, as he was being placed in the ambulance. Aston remained at the scene to investigate after the ambulance departed for the hospital.

He called police headquarters to ascertain the ownership of the motorcycle and was promptly advised that the license plates had been reported stolen. Aston thereafter observed that the serial number on the motorcycle had been defaced, a misdemeanor in violation of Maryland Code (1971 Repl. Yol.) Art. 27, § 389. He completed his investigation at the scene without ascertaining Bouldin’s identity and proceeded to the hospital “to check on . . . [Bouldin’s] condition and to place him under arrest.” Prior to Aston’s arrival at the hospital, Bouldin had been taken to the emergency room, placed on a stretcher and all his clothing was removed.

Consistent with the hospital’s policy, Bouldin’s wallet and identification cards had been taken from his clothes and placed in safekeeping. Aston arrived at the hospital about 45 minutes after the accident occurred; he proceeded to the emergency room where he located Bouldin on the stretcher in an unconscious condition. lie observed that Bouldin’s clothing had been removed and that he was then being attended by a physician. While Aston was familiar with the hospital’s policy to remove personal effects of patients for safekeeping, he did not ask and was not told that Bouldin’s identity was known to the hospital and that his wallet had been removed from his clothing. Aston observed that Bouldin’s clothing and his flight bag were lying on a shelf beneath his stretcher; he picked up the clothing and took it into an adjoining room “to check for driver’s license or registration or something.” A search of Bouldin’s jacket revealed 20 glassine bags of heroin.

Aston then removed the flight bag from the shelf beneath the stretcher and held it until narcotics officers, whom he had called, arrived at the hospital. A search of the flight bag uncovered an additional 324 glassine bags of heroin. Thereafter, Bouldin was placed under 24-hour guard at the hospital where he remained for approximately five months. ⁵¹⁴ At the trial, Aston was asked what he did when he arrived at the hospital “with regard to placing Mr. Bouldin under arrest.” Aston replied: “I didn’t — I didn’t tell him that because he was in no condition to carry on a conversation.” The heroin seized from Bouldin’s jacket and flight bag was admitted into evidence over his objection that the searches were unlawful. The trial judge concluded that Aston had probable cause to arrest Bouldin without a warrant for possession of stolen license tags and for defacing the serial number on the motorcycle.

The court then said: “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 vs. State, 20 Md. App. 682 [ 318 A. 2d 204 (1974)] 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.” In affirming the convictions, the Court of Special Appeals disagreed with the trial court’s conclusion that the search of Bouldin’s clothing had been justified as one conducted in a medical emergency for the purpose of ascertaining identity; it said that the “absence of medical rationale” was obvious from Aston’s testimony that his express purpose for going to the hospital was to arrest Bouldin. It concluded that Aston did in fact arrest Bouldin; that due to Bouldin’s unconscious condition, strict conformity with technical prerequisites of making an arrest, such as a touching of, or verbal notification to the arrestee, was unnecessary; and that under ⁵¹⁵ the principles of United States v. Robinson, 414 U. S. 218 , 94 S. Ct. 467 , 38 L.Ed.2d 427 (1973), “grounds for the arrest coupled with the intent of the arresting officer to detain the suspect suffice if the condition of the arrestee precludes the other prerequisites to consummation of a custodial arrest.” 26 Md. App. at 553 . Having found that the arrest was lawful, the court held that Aston was entitled under Robinson to make a full search of Bouldin’s “person” incident to the arrest, without regard to the limitations placed on such searches by Chimel v. California, 395 U. S. 752 , 89 S. Ct. 2034 , 23 L.Ed.2d 685 (1969).

The court concluded that Aston was lawfully entitled in the circumstances to search Bouldin’s clothing even though it was not literally upon his “person”; it said that “it would be anomalous indeed to hold that the removal of appellant’s clothes in an emergency situation somehow extinguished the right to search them incident to his arrest.” 26 Md. App. at 554 . In approving the search of Bouldin’s “person” under Robinson , the court said that its decision “in no way condones a curious rummaging about to identify a person merely because he is in a comatose state, short of an emergency or the conditions of arrest shown here.” 26 Md. App. at 554 . It also approved Aston’s search of the flight bag on the independent ground that it was a reasonable procedure under the principles set forth in Waugh v. State, 20 Md. App. 682 , 318 A. 2d 204 , rev’d on other grounds, 275 Md. 22 , 338 A. 2d 268 (1975). It is axiomatic that when the State seeks to justify a warrantless search incident to arrest, it must show that the arrest was lawfully made prior to the search.

Coolidge v. New Hampshire, 403 U. S. 443 , 91 S. Ct. 2022 , 29 L.Ed.2d 564 (1971); Preston v. United States, 376 U. S. 364 , 84 S. Ct. 881 , 11 L.Ed.2d 777 (1964). Of course, the right to arrest is not equivalent to making an arrest; the record must satisfactorily demonstrate that an arrest was in fact consummated before a warrantless search incident thereto may be found to be lawful. See Howell v. State, 271 Md. 378 , 318 A. 2d 189 (1974). It is generally recognized that an arrest is the taking, seizing, or detaining of the person of another (1) by touching ⁵¹⁶ or putting hands on him; (2) or by any act that indicates an intention to take him into custody and that subjects him to the actual control and will of the person making the arrest; or (3) by the consent of the person to be arrested. 5 Am.Jur.2d Arrest § 1 (1962).

It is said that four elements must ordinarily coalesce to constitute a legal arrest: (1) an intent to arrest; (2) under a real or pretended authority; (3) accompanied by a seizure or detention of the person; and (4) which is understood by the person arrested. 6A C.J.S. Arrest § 42 (1975); Creamer, The Law of Arrest, Search and Seizure, ch. 3, at 49 (1968). We have defined an arrest in general terms as the detention of a known or suspected offender for the purpose of prosecuting him for a crime. McChan v. State, 238 Md. 149 , 207 A. 2d 632 (1965); Cornish v. State, 215 Md. 64 , 137 A. 2d 170 (1957). Our cases make clear, as McChan states, that in ordinary circumstances “there is a detention only when there is a touching by the arrestor or when the arrestee is told that he is under arrest and submits [but] [w]here there is no touching, the intention of the arrestor and the understanding of the arrestee are determinative, for in order for there to be an arrest in such case, there must always be an intent on the part of one to arrest the other and an intent on the part of such other to submit.” 238 Md. at 157 .

Ordinarily, therefore, there can be no arrest where there is no restraint or where the person sought to be arrested is not