Buford Linwood St. Clair v. State

Macgill, J., delivered the opinion of the Court. A jury in the Circuit Court for Prince George’s County found the appellant guilty of breaking a dwelling house in the daytime with intent to commit a felony therein and grand lar ⁶⁰⁸ ceny. From the judgment of the court he has appealed, contending that the articles allegedly stolen from the dwelling should not have been received in evidence against him because they had been secured as the result of an unlawful search and seizure. He also complains (a) that the State failed to establish a proper chain of custody of the stolen goods, (b) that the trial judge erroneously charged the jury with reference to the provisions of Section 32 of Article 27 of the Code, rather than with reference to the provisions of Section 30 (b) of the Article, and (c) that no witness identified him in court and that there was no evidence produced to establish that the breaking occurred in the daytime.

On August 3, 1965 James A. Braswell returned from a trip to South Carolina and found that his home near Upper Marlboro had been broken into during his absence, and that certain articles of an aggregate value in excess of $100.00 were missing. He notified the Prince George’s County police and furnished a description of the missing articles. On August 6 or 7, the police put out a teletype message “to the general area” advising of the stolen goods. At 11:15 a.m. on August 7, 1965, Trooper Rhodenizer of the Virginia State Police observed the appellant asleep in his automobile, which bore Alabama license plates, on State Route 800, near the town of Salem in Roanoke County, Virginia.

The trooper also observed two television sets in open view on the floor of the vehicle. He roused the appellant and, in response to inquiries made by the trooper, appellant produced his California driver’s license, bearing an Orange, California, address, and his registration papers for the vehicle, showing it to have been titled in Alabama to appellant. Appellant told the officer that he owned the television sets; that he had come from California viai Alabama to look for work in Virginia and Maryland; and that as he had arrived in the area late at night, and did not want to awaken relatives with whom he intended to stay, and who lived but a short distance from where he was parked, he decided to spend the night sleeping in his car. The trooper knew of appellant’s relatives and also knew that they lived in the immediate area.

Satisfied with appellant’s explanation, the trooper began to drive away, but as he did so, he ⁶⁰⁹ checked the name of the appellant by police radio with his dispatcher. He was immediately informed of the existence of a teletype message to the effect that appellant was wanted by California authorities “for violation of parole and burglary.” The trooper halted the appellant, who was then driving off, and informed him that there was a teletype message for his arrest, and that he would be taken before a justice of the peace in Salem. Appellant then requested permission to remove an article of clothing from the trunk of his car. When the trunk lid was raised, the trooper observed a number of articles in the trunk, including a vacuum cleaner, a floor fan, a record player, a slide projector and a sewing machine.

The trooper, at that time, believed that these articles were owned by appellant, although as it was later learned they were part of the goods stolen from Braswell. The trooper, after searching appellant’s person, took him in his police car to a justice of the peace in Salem, which was approximately twelve miles from the scene of the arrest. The trooper there obtained a fugitive warrant on the strength of the teletype message — the message containing information that California authorities were seeking appellant for “violation of probation, burglary”; that California authorities would extradite; that appellant was last seen on July 30, 1965 in Washington, D. C. driving a car with Alabama license plates; that he had there attempted to use a credit card stolen in a burglary in Texas; and that Texas authorities also wanted appellant. Upon his failure to post the requisite bond to secure his release, appellant was incarcerated in the Salem jail, immediately after which the trooper returned to the appellant’s car, bringing his Sergeant with him so that the latter could drive it into Salem.

The car was thereafter returned to Salem and parked near the jail. Rhodenizer, in his testimony at the trial, stated that “because we were responsible for them,” the contents of appellant’s vehicle, including those in the trunk, were promptly removed by the State Police, inventoried by the serial number on each of the articles, and placed in the custody of the Sheriff. The articles remained in the Sheriff’s custody for about four days when, due to a shortage of space in the Sheriff’s office, the State Police were required to move the goods back into ap ⁶¹⁰ pellant’s car, which was still parked adjacent to the jail. Appellant, having signed a waiver of extradition, was returned to California on the fifth day following his arrest.

On August 19 —twelve days after appellant’s arrest — a list of the articles taken from his car was “run on the teletype as police information, found,” which, according to Trooper Rhodenizer’s testimony, meant that they were listed as having been found in appellant’s possession “just for general police information over the teletype network.” On August 20, Prince George’s County police, responding to the Salem teletype, advised that the goods had been stolen. Trooper Rhodenizer then took the articles from the trunk of appellant’s car and placed them in the storage room in the State Police headquarters in Salem. Rhodenizer testified that after inventorying the contents of appellant’s car, appellant told him that he would like his brother-in-law to have his vehicle and to this end, the trooper “assisted him in drawing up papers giving his brother-in-law the power of attorney to get a Virginia title.” Testifying in response to the question — “Did he [appellant] say anything about what he would like you to do with the goods in the car,” the trooper said: “No, not specifically. He mentioned his sister and he indicated that he would like her to get what he had.” Elaborating on his testimony that he felt “responsible” for the contents of appellant’s car, Rhodenizer testified that in the circumstances under which appellant was arrested, the “practice” was “to inventory each item that we find in the vehicle and leave them for safekeeping.” Appellant was not asked nor did he consent to the inventory and removal of the articles from his car.

No search warrant was obtained to search the vehicle because, as Trooper Rhodenizer testified: “He had no reason to suspect that any items in the car were stolen.” Testifying in his own behalf at the trial, the appellant stated that immediately after his arrest he asked permission to drive his car to the home of his relatives, approximately one quarter of a mile from the point of the arrest; that the trooper refused to grant such permission, instead telling him to “leave it there ⁶¹¹ and lock it up;” that he told the trooper “one door won’t lock, and I’ve got some stuff in it I don’t want nobody to takeand that he thereafter gave the keys of the car to the trooper and told him to give the keys to his brother-in-law so that his brother-in-law could drive the car to his house. 1 The stolen articles taken from appellant’s car following his arrest were received in evidence at the trial over his objection. Appellant contends on this appeal, as he did below, that the search of his vehicle was not incident to his arrest for parole violation and, in any event, was too remote in time and place from the arrest to be classified as a search incident to an arrest. He contends that the search was but an exploration for incriminating evidence. The State, on the other hand, contends that the search was lawful as incident to a valid arrest or, alternatively, that there was no search or seizure, but rather only a taking of the articles into “protective custody;” and when it was subsequently learned that the articles were stolen, then the seizure thereof was entirely legal.

The initial question before us is whether, in the circumstances of this case, the inventory and removal by police of the contents of appellant’s car constituted an unreasonable search and seizure in violation of the Fourth Amendment to the Federal Constitution. Manifestly, if such police action constituted a “search” in the constitutional sense, 2 it can survive constitutional inhibition only upon a showing that the surrounding facts bring it within one of the exceptions to the rule that a search must rest upon a search warrant. See Preston v. United States, 376 U. S. 364 (1964); Stoner v. California, 376 U. S. 483 ⁶¹² (1964). One such exception — that of consent — is clearly not applicable, since at no time did appellant consent to the entry into and removal of the contents of his vehicle.

Another exception to the rule — that which authorizes a search incident to a valid arrest — is likewise inapplicable under the facts of this case. The police expressly disavowed making any “search” of the vehicle, either incident to the arrest or otherwise. They sought to justify their action on the ground that under the circumstances they were responsible for the contents of appellant’s vehicle and consistent with their practice in such cases, their ■object in removing such contents was to place them in safekeeping. Indeed, as the appellant had been incarcerated at the time his vehicle was first entered and inventoried by police, and as the police entertained a bona fide belief that the appellant ■owned both the vehicle and its contents, they could not have searched the vehicle incident to the arrest under any of the tra■ditional justifications therefor, i.e. — the need to seize weapons •and other things which might be used to assault an officer or ■effect an escape, and to prevent the destruction of evidence by the arrested person.

See United States v. Rabinowitz, 339 U. S. 56 (1950) and Agnello v. United States, 269 U. S. 20 (1925). 3 While it may also be, as argued by appellant, in reliance up-en Preston v. United States, supra, that the “search” could not be justified as incident to a valid arrest because it was too remote in time and place, we need not decide that question in view of our other reasons for concluding that the entry into •appellant’s vehicle was not incident to his arrest. 4 ⁶¹³ The rule requiring a search warrant as a prerequisite to a valid search has further exceptions. In Cooper v. California, 386 U. S. 58 (1967), the Supeme Court upheld the warrant-less search of a motor vehicle, not incident to an arrest, where such vehicle had been lawfully impounded and made subject to a statutory forfeiture proceeding because of its illegal use in connection with the transportation of narcotics. In that case, appellant had been arrested for a narcotics violation and his car impounded by police. A week later, the vehicle was searched and incriminating evidence of the narcotics violation was discovered.

Under California law the police were required to seize the vehicle and to hold the same as evidence until a forfeiture had been declared or a release ordered. The court held that the search of the car was not incident to the arrest, thus distinguishing Preston , and further held that it was reasonable under the Fourth Amendment. It concluded that while lawful custody of an automobile does not of itself dispense with the constitutional requirements of searches thereafter made of it, “the reason for and nature of the custody may constitutionally justify the search.” The forfeiture proceedings were prolonged, taking four months to conclude, and although there was never any assurance at the time of the search that the car would be forfeited, the court nevertheless said: “* * * It would be unreasonable to hold that the police, having to retain the car in their garage for such a length of time, had no right, even for their own protection, to search it * * While Cooper thus makes it plain that a warrantless search of a vehicle may be reasonable without being incident to an arrest, unlike the factual situation in that case, appellant’s car was not required to be seized by State law at the time of his ⁶¹⁴ arrest. Neither did it constitute evidence of any crime, nor was it subject to a statutory forfeiture proceeding.

That these factors need not necessarily be present to authorize a warrantless search of a motor vehicle properly in police custody where the circumstances show the search to be otherwise reasonable is nevertheless abundantly clear from the decisions. As the court observed in one such case. People v. Prochnau, 59 Cal. Rptr. 265 (Cal.

Dist. Ct. App. 1967) : “The core of the matter is not whether the police officers acted without express authority in State law in impounding the car; it is whether its subsequent conduct was reasonable in the light of the constitutional guarantees with respect to the matter of search and seizure.” Thus, in Heffley v. State, 423 P. 2d 666 (Nev. 1967), Heffley was arrested in his car in which he had a large number of guns in plain view on the back seat. Charged with unlawful possession of a pistol, he was taken to the police station, and thereafter, his vehicle was impounded by police, searched, and stolen articles discovered therein. The court held in effect that while the search could not be justified as incident to the arrest in light of Preston , nevertheless it was not constitutionally unreasonable under the circumstances.

Noting that the police “had a responsibility to inventory the property, for if it later developed that Heffley owned the guns and the automobile, they would be responsible for their safekeeping,” the court stated: “* * * If the search is for the purposes of inventory of personal effects and not exploratory, articles found as a result which supply the foundation for a reasonable suspicion on the part of the police are not subject to unlawful search and seizure. This is so because the police are in a place where they have a right and obligation to be, as in this case, when they find the objects of seizure. “The police officer, when there is just cause, has a duty not only to impound a car from the public highway for its own protection, but also to inventory the contents so that they may be safeguarded for the owner. Such practice is deemed necessary to defeat ⁶¹⁵ dishonest claims of theft of the car’s contents and to protect the temporary storage bailee against false charges. * * * If, however, the policing conduct indicates that the intention is exploratory rather than inventory the fruits of that search are forbidden. * * * Unfortunately, distinguishing inventory from exploration may prove to be ambitious and unprecise. We can only say that each case must be determined upon its own facts and circumstances. “In this case from the time of seizure of the car until the inventory at the police station, the vehicle was in the lawful custody of the officers.

In these circumstances the search without a warrant of defendant’s automobile could not be said to be ‘unreasonable.’ It is only unreasonable searches that are prohibited by the Constitution. United States v. Rabinowitz, 339 U. S. 56 , 70 S. Ct. 430 , 94 L. Ed. 653 (1950).” In Cotton v. United States, 371 F. 2d 385 (9th Cir. 1967), Cotton was accosted by police in an alley late at night while in his car with the lights out. He was arrested for disturbing “private places,” and removed from the scene of the arrest, after which his car was towed away to the police impound. As the arresting officer felt that “after arresting the man, I am responsible for the vehicle and the property in it,” the car was entered and examined by police, it thereby being ascertained that the car had been stolen.

In the course of its opinion, in which it found no merit to appellant’s contention that the search of his vehicle was unconstitutional under the Fourth Amendment, the court said: “* * * Cotton having been validly arrested and taken to the police station, the officer would have been derelict in his duty if he had left the car unattended in a dark alley in the middle of the night. The police have as much a duty to protect the property of a suspect as they have to protect the property of the rest of us, and that is what they did in this case by towing the car to the police impound. They also had a duty to keep a ⁶¹⁶ record of the property that they had impounded so that it could be returned to the suspect or to its owner in due course. For reasons stated below, we do not think that the mere opening of the door of the car for the purpose of making such a