Briscoe v. State

BARBERA, J. Petitioner William E. Briscoe was tried before a jury in the Circuit Court for Baltimore City and convicted of the crimes of possessing a regulated firearm after having been convicted of a disqualifying crime; wearing, carrying, or transporting a handgun in a vehicle; possessing cocaine; and driving on a suspended license. Those convictions were based on evidence the police recovered while searching Petitioner’s vehicle at the time of his arrest. At that time, the police found cocaine in the center console of the passenger compartment and a handgun in the locked glove compartment. Petitioner did not challenge the seizure of the cocaine, but he did seek suppression of the handgun, claiming that it was the fruit of a search forbidden by the Fourth Amendment.

The suppression court denied the motion, finding that the evidence was lawfully obtained either as a valid inventory search under South Dakota v. Opperman, 428 U.S. 364 , 96 S.Ct. 3092 , 49 L.Ed.2d 1000 (1976), and its progeny, or as a valid search incident to arrest under New York v. Belton, 453 U.S. 454 , 101 S.Ct. 2860 , 69 L.Ed.2d 768 (1981). On appeal to the Court of Special Appeals, Petitioner challenged the Circuit Court’s denial of his motion to suppress the handgun. While the case was pending in that court, the Supreme Court decided Arizona v. Gant, 556 U.S. 332 , 129 S.Ct. 1710 , 173 L.Ed.2d 485 (2009). The State conceded that, under Gant , the search violated the Fourth Amendment.

The State argued, though, that Petitioner was not entitled to suppression of the handgun, by application of the good-faith exception to the Fourth Amendment’s exclusionary rule. In the State’s view, the police conducted the search “rely[ing] in good faith on controlling judicial precedent.” The Court of Special Appeals did not reach the Gant issue, holding instead that the handgun found within the locked glove compartment was recovered during a valid inventory search. Petitioner filed a petition for writ of certiorari, which we granted to answer the following questions: ³⁹⁰ 1. Did the circuit court err in finding that a search of a vehicle was a valid inventory search where the State failed to establish (a) that there was a legitimate need to tow the vehicle, (b) that the officer made an inventory list and gave a copy to the driver, (c) that the towing of the vehicle and the opening of the locked glove compartment were permitted by established standardized policies, or (d) that the opening of the locked glove box was necessary to safeguard property against loss? 2.

In light of the Supreme Court’s recent decision in Arizona v. Gant, [ 556 U.S. 382 , 129 S.Ct. 1710 ] (2009), did the circuit court err in finding that a search of a vehicle, which included a search of the locked glove compartment, was a valid search incident to arrest where the State failed to establish that the arrestee was unsecured and within reaching distance of the vehicle at the time of the search, and where the police had the keys to the locked glove compartment? At the time of briefing and oral argument in this case, the parties and the Court were aware that the issue generated by the State’s good-faith argument was in material respect identical to an issue then pending certiorari review in the Supreme Court. The Court granted the writ in Davis v. United States, — U.S. —, 131 S.Ct. 502 , 178 L.Ed.2d 368 (2010), and on June 16, 2011, issued its opinion in the case. 564 U.S. -, 131 S.Ct. 2419 , 180 L.Ed.2d 285 . 1 The Davis Court held, much as the State has argued in the present case, “that searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” 564 U.S. at-, 131 S.Ct. at 2423-24 . ³⁹¹ The holding of Davis applies to the second question before us. See Griffith v. Kentucky, 479 U.S. 314, 328 , 107 S.Ct. 708 , 93 L.Ed.2d 649 (1987) (holding that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past”); State v. Daughtry, 419 Md. 35, 78 , 18 A.3d 60, 86 (2011) (stating same).

Applying Davis to that question, we must determine whether, incident to Petitioner’s arrest, the police searched the locked glove compartment in objectively reasonable reliance on then-binding Maryland appellate precedent, namely Belton . For reasons we shall explain more fully, we hold that the search of the glove compartment was not a valid inventory search. We further hold that, under Davis , the good-faith exception to the exclusionary rule applies to what, at the time, was a lawful search of the glove compartment, under Belton . We therefore affirm the judgment of the Court of Special Appeals, albeit on a ground not relied upon by that court.

I. A. The Suppression Motion Hearing Baltimore City Police Officer Lavgh Bormanshinov was the sole witness at the hearing on Petitioner’s motion to suppress the handgun. Officer Bormanshinov testified as follows about the sequence of events before and during the search of Petitioner’s vehicle: On June 26, 2007, at 12:50 a.m., Officer Bormanshinov observed a minivan traveling near the 1200 block of Presstman Street in Baltimore. Its taillights were not illuminated. Officer Bormanshinov activated his lights and trained his spotlight on the minivan, indicating to the driver that he pull over.

The driver, Petitioner, immediately stopped the minivan. Officer Bormanshinov approached the vehicle and asked Petitioner for his driver’s license and the vehicle’s registration. ³⁹² Petitioner could not produce his driver’s license, but he did provide the officer with the registration. The registration showed that the minivan was owned by Ms. Luella Lane. Officer Bormanshinov returned to his vehicle and, using the information Petitioner supplied him, discovered that Petitioner’s license was suspended and there was an open arrest warrant for him.

Officer Bormanshinov returned to the minivan and asked Petitioner for the keys, which Petitioner gave him. Officer Bormanshinov then went back to his vehicle and, upon further investigation, learned that the warrant was “positive.” 2 Officer Bormanshinov removed Petitioner and his passenger, Jeremy Ringgold, from the minivan. Officer Bormanshinov arrested Petitioner, searched him, and sat him on the curb. At some point during the preceding events, Officer Bormanshinov’s Sergeant, whose name is not reflected in the record, arrived on the scene.

The Sergeant stood next to the passenger door to monitor the then-still-seated front seat passenger, Ringgold, while Officer Bormanshinov further investigated the warrant for Petitioner. When Officer Bormanshinov returned, he asked Ringgold for identification for the purpose of running a “warrant check.” Ringgold was unable to comply. Consequently, Officer Bormanshinov and his Sergeant removed Ringgold from the minivan, as well. Officer Bormanshinov searched Ringgold (evidently finding nothing of relevance to the present case) and sat him on the curb next to Petitioner.

Officer Bormanshinov testified that, “[sjince [Petitioner] was arrested,” he “did an inventory search of the vehicle.” Using the keys Petitioner gave to him, Officer Bormanshinov unlocked the glove compartment and found a handgun inside. He also found several vials of suspected cocaine, one in the coin slot to the left of the steering wheel and two more in a Colt 45 can that was in the vehicle’s center console. ³⁹³ The State did not ask further questions of Officer Bormanshinov concerning the purported “inventory search.” Neither did the State introduce any evidence of a Baltimore City Police Department policy or procedure regarding inventory searches. At some point, Officer Bormanshinov decided to have the minivan towed to the “City yard.” Officer Bormanshinov tried without success to have Ms. Lane, the owner of the vehicle, contacted to let her know that her car would be towed to the impound lot. During cross-examination, Officer Bormanshinov testified that Petitioner was calm, polite, cooperative, and sober during the traffic stop, arrest, and search of the minivan.

Defense counsel then asked Officer Bormanshinov when the decision was made to tow the minivan, and he responded simply, “My plan was to tow the vehicle. But I had to do a search of the vehicle before—that’s our procedure—before it gets towed.” Defense counsel propounded further questions on this point, resulting in the following exchange: Defense Counsel: Are you familiar with the general order that requires you to follow all of the procedures for towing a car or impounding a car? Officer Bormanshinov: I believe once the driver’s suspended and he or she is not the registered owner, then the car, car can be towed. Defense Counsel: But do you have any policies or procedures that direct you what you’re supposed to do in that situation?

Officer Bormanshinov: I have not come across that. Defense Counsel: You’re not familiar with any general orders describing what you should be doing in that situation? Officer Bormanshinov: No, ma’am. ³⁹⁴ Defense Counsel: You’re not familiar with the towing procedures that require you to do a complete and total inventory of everything that’s in the car? Officer Bormanshinov: I’m familiar with that, ma’am.

Defense Counsel: You are? Officer Bormanshinov: With the inventory, yes. Defense Counsel: So then you completed your vehicle report; isn’t that correct? Officer Bormanshinov: Yes.

Defense Counsel: And your vehicle report notes everything that was inventoried in the car? Officer Bormanshinov: I believe there was nothing of value to be inventoried in the vehicle. Defense Counsel: But don’t your own general orders require you to write down everything that belongs to the owner in order to protect them and protect the property? Officer Bormanshinov: I, I’m not sure of that, ma’am.

Defense Counsel: Can you tell us what was in the car? Officer Bormanshinov: Yes, an empty oxygen tank. At the conclusion of Officer Bormanshinov’s testimony, defense counsel sought suppression of the handgun on the ground that the search of the locked glove compartment was not a valid inventory search. Defense counsel argued that “the officer was [unjable to articulate what the procedure was.

He was unable to produce any of the orders. He was unable to repeat any training that he’s had in this case.” For those reasons, defense counsel maintained that the search was not a “legitimate” inventory search, but instead was “an excuse [for] further investigation.” The State disagreed. In the State’s view, Officer Bormanshinov conducted a valid inventory search of the vehicle, including the glove compartment. The State further argued that, even if the search was not valid as an inventory search, the search of the glove compartment was authorized as a part of a search incident to arrest under the then-prevailing Su ³⁹⁵ preme Court authority of Belton, 453 U.S. at 460, n. 4 , 101 S.Ct. 2860 .

The motions court denied the motion to suppress. The court explained: I think it was a valid inventory search and I think, although the officer didn’t have the administrative order at hand to cite, he was certainly familiar with it and it was a routine that he was familiar with and followed the steps.... Also, in light of [Hamel v. State, 179 Md.App. 1 , 943 A.2d 686 (2008),] [ 3 ] ... given to me by the State which bears a recent date, which indicates that the Court of Appeals hasn’t had its say on that yet.... But certainly, this search would fall within the ambit of what was found to be under the Constitution in a search incident to arrest.

I mean, they just clearly held that a locked glove compartment is within the ambit under the latest Supreme Court decision. So, under either theory, it was a valid search. B. The Trial and Appeal Petitioner was subsequently convicted by a jury on all counts and sentenced to imprisonment for five years, without the possibility of parole. On appeal to the Court of Special Appeals, Petitioner argued that the trial court erred in denying the motion to suppress because the search was neither a valid inventory search nor a valid search incident to arrest, under Belton .

In an unreported opinion, the Court of Special Appeals affirmed the judgments of conviction, holding “that the inventory search of the minivan in this case was reasonable.” The court therefore did not address whether the search of the glove compartment was a valid search incident to Petitioner’s arrest.

II

Searches done without a warrant are “presumed to be unreasonable.” Henderson v. State, 416 Md. 125, 148 , 5 ³⁹⁶ A.3d 1072, 1085 (2010) (stating that a search unaccompanied by a warrant “is presumptively unreasonable”). There are, however, recognized exceptions to the warrant requirement, two of which are relevant to the present case. The first is known as the “inventory search,” which generally authorizes the search of a vehicle in lawful police custody for the purpose of cataloging property located therein. See Opperman, 428 U.S. at 376 , 96 S.Ct. 3092 ; Duncan v. State, 281 Md. 247, 259 , 378 A.2d 1108, 1116 (1977).

The second is the “search incident to a lawful arrest.” United States v. Robinson, 414 U.S. 218, 224 , 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973); Chimel v. California, 395 U.S. 752, 768 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969) (holding that a search incident to arrest permits the law enforcement officer to search the person of the arrestee and the area around the arrestee where the arrestee might reach to grab a weapon or evidence); Belton, 453 U.S. at 460 , 101 S.Ct. 2860 (applying Chimel’s holding to the search of a vehicle incident to the arrest of a recent occupant). As with any warrantless search, the State bears the burden to overcome the presumption of unreasonableness. Paulino v. State, 399 Md. 341, 348 , 924 A.2d 308, 313 (2007). In reviewing the ruling of the suppression court, we must rely solely upon the record developed at the suppression hearing.

See, e.g., Lee v. State, 418 Md. 136, 148 , 12 A.3d 1238, 1245 (2011). We view the evidence and inferences that may be drawn therefrom in the light most favorable to the party who prevails on the motion, id., id., 12 A.3d at 1245 , here, the State. We give deference to the first-level factual findings made by the suppression court, and we accept those findings unless shown to be clearly erroneous. See, e.g., Elliott v. State, 417 Md. 413, 427 , 10 A.3d 761, 769 (2010).

We, however, make an independent appraisal of the constitutionality of a search, “applying the law to the facts found in each particular case.” Id. at 428 , 10 A.3d at 769 (quoting Belote v. State, 411 Md. 104, 120 , 981 A.2d 1247, 1256 (2009)) (internal quotation mark omitted). ³⁹⁷ A. Inventory Search 1. We first address the State’s contention that the search of the locked glove compartment was undertaken in the course of a lawful inventory search, under Opperman, Duncan, and related jurisprudence. Pursuant to this well-defined exception to the warrant requirement, a search of a vehicle for the purpose of itemizing the property therein is constitutional, so long as the vehicle is in lawful police custody at the time of the search and the search is carried out pursuant to “standardized criteria or [an] established routine” established by the law enforcement agency. Florida v. Wells, 495 U.S. 1, 4 , 110 S.Ct. 1632 , 109 L.Ed.2d 1 (1990) (citation omitted).

The purposes of an inventory search are three: to protect the police from danger, to protect the owner’s property, and to protect the police against claims and disputes over lost or stolen property. Duncan v. State, 281 Md. 247, 257 , 378 A.2d 1108, 1115 (1977) (citing Opperman, 428 U.S. at 369 , 96 S.Ct. 3092 ). As with all exceptions to the warrant requirement, use of the inventory search must be limited to those circumstances that are tied to the precise justifications for it, which do not include criminal investigation. See Wells, 495 U.S. at 4 , 110 S.Ct. 1632 (“[A]n inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence.”).

Therefore, the State must ensure that the record of the suppression hearing reflects both that the vehicle was in lawful police custody at the time of the search and that the search was conducted in accordance with a sufficiently standardized departmental policy or routine. See Wells, 495 U.S. at 4-5 , 110 S.Ct. 1632 ; Duncan, 281 Md. at 259 , 378 A.2d at 1116 . Petitioner advances several arguments in support of the contention that the State failed to establish that the search of the vehicle falls within the limited purview of an “inventory search.” He argues: (1) the State failed to establish at the suppression hearing that, at the time of the search, the vehicle was in lawful police custody; (2) Officer Bormanshinov’s list ³⁹⁸ ing of only the contraband (cocaine and handgun) on the purported inventory list undermines the State’s assertion that Officer Bormanshinov was conducting a valid inventory search; and (3) the record contains no evidence of a departmental policy that permitted, authorized, or otherwise regulated the search of closed or locked containers, rendering the motion court’s ruling fatally flawed under Wells . Officer Bormanshinov testified that, once he determined that the vehicle was not owned by Petitioner, he attempted to contact the owner, Ms. Luella Lane, to advise her that her car would be towed to the impound lot.

When asked by defense counsel why it was necessary to tow the vehicle, Officer Bormanshinov replied that he “believ[ed that] once the driver’s suspended and he or she is not the registered owner, then the car ... can be towed.” However, he had “not come across,” and was not familiar with, any procedures or orders governing the appropriate action in that situation. Moreover, Officer Bormanshinov could only testify that “I had to do a search of the vehicle before—that’s our procedure—before it gets towed.” We shall assume, without deciding, that Officer Bormanshinov’s references to a “procedure” (without any mention of a specific rule or regulation) sufficed to establish the existence of a sufficiently routinized, general departmental inventory search policy. Even so, Officer Bormanshinov’s testimony gives no indication that the supposed policy provides standardized criteria governing the search of closed or locked containers and, if so, that the search of the locked glove compartment was done according to that policy. The State correctly notes that, in the context of inventory searches, “nothing ... prohibits the exercise of police discretion so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.” Colorado v. Bertine, 479 U.S. 367, 375 , 107 S.Ct. 738 , 93 L.Ed.2d 739 (1987) (emphasis added).

Such discretion, however, must be exercised pursuant to standardized criteria, which, with re ³⁹⁹ spect to the search of closed and/or locked containers, are not present in the record before us. The Supreme Court addressed this precise point in Wells . The defendant in that case was stopped for speeding and subsequently arrested for driving under the influence of alcohol. 495 U.S. at 2 , 110 S.Ct. 1632 . In an inventory search that followed, a locked suitcase was found within the locked trunk. 4 Id.

The suitcase was forced open, revealing a garbage bag containing marijuana. Id. The defendant asserted that the search of the locked suitcase exceeded the scope of a valid inventory search. Id. at 2-3 , 110 S.Ct. 1632 .

The Court agreed with Wells that the search of the locked suitcase could not be upheld as an inventory search, because “the record contained no evidence of any Highway Patrol policy on the opening of closed containers found during inventory searches.” Id. at 3 , 110 S.Ct. 1632 . Nor did the Court assume that there was one, in the absence of any indication in the record of a departmental policy on the subject; rather, the Court analyzed the case as if there were no such policy, stating that the department “had no policy whatever with respect to the opening of closed containers encountered during an inventory search.” Id. at 4-5 , 110 S.Ct. 1632 . Consequently, the Court held that the search “was not sufficiently regulated to satisfy the Fourth Amendment” and therefore the evidence found incident to the search was correctly suppressed. Id. at 5 , 110 S.Ct. 1632 .

The case at bar suffers from the same lack of evidence in the record of a Baltimore City Police Department policy concerning the opening of locked containers during an inventory search. In the absence of evidence that such a policy existed, it is impossible to distinguish a valid inventory search from a general investigatory search. As in Wells , we are ⁴⁰⁰ constrained to conclude in the present case that the search of the locked glove compartment was not “sufficiently regulated to satisfy the Fourth Amendment,” Wells, 495 U.S. at 5 , 110 S.Ct. 1632 , to qualify as an inventory search. 5 2. The State, perhaps predicting that we would reach this conclusion, argues that, even if “Officer Bormanshinov’s on-scene search was not a proper inventory, the evidence was nevertheless admissible under the inevitable discovery doctrine.” We disagree. “The exception [to the warrant requirement] for exigent circumstances is a narrow one.” Williams v. State, 372 Md. 386, 402 , 813 A.2d 231, 241 (2002).

Under the inevitable discovery doctrine, “[ejvidence obtained as a result of an illegal search is admissible where, absent the illegal conduct, the evidence inevitably would have been discovered through legal means.” Id. at 415 , 813 A.2d at 248 . According to the State, that doctrine is applicable here, because “[t]here can be no question that the police had authority to, and ultimately did, tow and impound [Petitioner’s] minivan. Thus, the search of the vehicle undoubtedly would have occurred regardless of Officer Bormanshinov’s on-scene investigatory search.” The problem with the State’s argument is that the record before us is devoid of evidence demonstrating that the vehicle’s locked glove compartment would have been inventoried according to departmental policy, once it was towed to the impound lot. Without such evidence in the record, we are unable to conclude that the handgun would have been discovered inevitably, in a later inventory search of the locked glove compartment.

See United States v. Mendez, 315 F.3d 132, ⁴⁰¹