Cable v. State

JAMES S. GETTY, Judge, Specially Assigned. Robert Cable, appellant herein, was convicted in the Circuit Court for Baltimore City (Greenfeld, J.) of possession with the intent to distribute oxycodone (percodan) and hydromorphone (dilaudid), for which he was sentenced to three years imprisonment. In this appeal, appellant raises the sole issue of whether the trial court erred in admitting evidence obtained from the search, pursuant to a warrant, of a briefcase in appellant’s constructive, but not actual, possession. On July 20, 1984, two officers from the Baltimore City Police Narcotics Unit applied for and obtained a search and seizure warrant for appellant and a woman known as “Queenie.” The officers had received information that appellant would be arriving at Baltimore-Washington International Airport on July 21, 1984, from Fort Lauderdale, Florida, and would be carrying percodan and dilaudid which he intended to sell in the Baltimore area.

Based on this information, a search and seizure warrant was issued by the Circuit Court for Baltimore City (Allen, J.). The warrant recited that certain named police officers stated by affidavit that there was reason to believe that on the person of Robert Cable “and any luggage, suitcase, briefcase or any items carried or possessed by him” there is now being concealed certain drugs, monies, books, firearms and assets gained from such illegal operations. The warrant then commanded that the person named be searched for the property specified. On July 21, 1984, Baltimore City Police Officers observed appellant arrive at Baltimore-Washington International Airport on a flight from Fort Lauderdale, Florida.

Upon his arrival at 10:16 a.m., appellant was seen carrying a brief ⁴⁹⁵ case. The police followed appellant and at 11:45 a.m. he was arrested at a Holiday Inn in Baltimore City. Appellant was transported to the police station and searched. The search disclosed a claim ticket for property being held at the Holiday Inn.

The police then returned to the Holiday Inn where they retrieved appellant’s briefcase from the hotel security room. The briefcase contained large quantities of percodan and dilaudid. Appellant now argues that the search of his briefcase exceeded the scope of the search and seizure warrant because the briefcase was not an item “carried or possessed by him” as required by the warrant. Appellant argues, therefore, that a second warrant was required before the briefcase could be seized or searched.

We disagree and explain. It is well-established that possession of contraband, to be criminal, need not be exclusive or actual. There may be joint possession and constructive possession, either of which will suffice to sustain a conviction. Md.Ann.Code art. 27 § 277(s) (1982 Repl.Vol.); Garrison v. State, 272 Md. 123, 128 , 321 A.2d 767 (1974); Butler v. State, 41 Md.App. 677, 679 , 398 A.2d 514 (1979).

At the time of his arrest, appellant was in constructive possession of the briefcase which was specifically included in the search and seizure warrant. Appellant, as evidenced by the claim check, had a possessory interest in the briefcase when arrested. We think the ensuing search within minutes after his arrest was permissible; a second warrant was not required. Obviously, the briefcase was subject to seizure and search if it had been in appellant’s actual possession at the time of his arrest.

Checking it for safekeeping does not alter the fact that the warrant authorized a search of appellant and “any ... briefcase carried or possessed by him.” The briefcase was in his possession constructively. Appellant suggests that this case is no different than finding a key in appellant’s pocket and searching his room by use of the' key to gain entrance. The difference, we point out, is that the room, in appellant’s hypothesis, was ⁴⁹⁶ not named in the warrant as a place to be searched. Appellant’s luggage and briefcase were subject to seizure and search by the terms of the warrant in the case under discussion.

Appellant’s reliance on United States v. Chadwick, 433 U.S. 1 , 97 S.Ct. 2476 , 53 L.Ed.2d 538 (1977) is misplaced. In Chadwick, supra, police searched a locked footlocker belonging to the defendants based on probable cause to believe the footlocker contained drugs. The United States Supreme Court reversed Chadwick’s conviction because the warrantless search was conducted more than an hour after federal agents had gained exclusive control of the footlocker and long after respondents were securely