Conner v. State

Liss, J., delivered the opinion of the Court. The appellant, Thomas Glenn Conner, was charged in a single indictment with three violations of the criminal law. They were: 1st count, motor vehicle larceny; 2nd count, receiving stolen goods; and 3rd count, possession of a manufactured article whose serial number had been removed or altered. On June 7, 1975, Corporal Jahn of the Prince George’s County Police Department was in a marked county police car routinely patrolling the Bladensburg area.

A passenger in his vehicle was Thomas Blair, an assistant State’s Attorney for Prince George’s County. There apparently was no special significance to Blair’s presence in the car other than as a testimonial to his zeal beyond the call of duty. Corporal Jahn and his passenger observed a Harley-Davidson motorcycle, which they later determined ¹²⁶ was being operated by the appellant, proceeding at a rate of speed substantially higher than that permissible in the area. It is conceded that Conner was exceeding the speed limit.

The police officer stopped the appellant and requested him to produce his driver’s license and registration card. Conner gave the officer a “completely obliterated” District of Columbia driver’s license, as well as a driver’s license from Virginia, and an Alabama registration slip in the name of Gerald King. Corporal Jahn gave the registration slip to Blair who walked to the opposite side of the motorcycle and compared the numbers on the registration slip with those on the motorcycle frame and engine housing of the vehicle. These numbers were visible on the outside of the motorcycle.

Blair had some experience with motorcycle identification in his position as an assistant State’s Attorney; he verified that the numbers on the frame and housing were identical, but he noticed that they had been stamped in a die not usually found on Harley-Davidson motorcycles. 1 Blair called this fact to Jahn’s attention whereupon Jahn checked Conner’s license status through the computer at the Motor Vehicle Administration and learned that Conner had been refused a license to operate a motor vehicle in Maryland. The appellant was requested to follow Corporal Jahn to the Hyattsville station for further investigation. At the station Corporal Bruciak, an auto theft investigator for the county police, made a further examination of the vehicle and discovered that the frame number was stamped in a standard die stamp — not the “posident” die. In addition, the number was not enclosed with a star in front of the number and a star at the end of the last number as was the practice of Harley-Davidson.

There was evidence that the original number on the vehicle had been obliterated. Corporal Bruciak checked a “secret” number located near the crankcase of the vehicle and obtained from that location a different identifying number. Investigation disclosed that one Jeffrey Ashe had reported a motorcycle owned by him, bearing that number, to have been stolen. On the basis of this ¹²⁷ information the charges previously recited were placed against the appellant.

Prior to trial the appellant filed a motion to suppress all the evidence obtained as a result of the search and seizure of the motorcycle on the grounds that the search and seizure was without a warrant and without probable cause and that the appellant did not consent to the search. A hearing was held on the motion to suppress and the motion was denied. On a later date, trial was had before a jury (Mathias, J., presiding) and the appellant was found not guilty of the larceny charged in the first count of the indictment but was found guilty of receiving stolen goods and possession of a manufactured vehicle whose serial number had been removed or altered. After a motion for new trial was denied, sentences were imposed and it is from these judgments that this appeal was filed.

I The appellant urges six grounds for reversal. We have considered each of them and for the reasons detailed infra, we have determined that they are without merit. We shall affirm. The first question raised by the appellant in this appeal is: Did the trial court err in denying the appellant standing to raise the issues urged by the appellant in his motion to suppress? 2 We have in this instance a classic case of a correct result reached for an incorrect reason.

The judge who heard the motion to suppress relied on the legal principles enunciated by this Court in Duncan and Smith v. State, 27 Md. App. 302 , 340 A. 2d 722 (1975). He held that Conner, in possession of recently stolen goods, did not have standing to raise the issue of the alleged illegal search and seizure. Several months later the Court of Appeals had Duncan before it on certiorari. The Court in Duncan and Smith v. State, 276 Md. 715 , 351 A. 2d 144 (1976), vacated our judgment and remanded the case for a determination as to whether the search and ¹²⁸ seizure was proper.

In its opinion, Judge Smith, speaking for the Court, held that when the possession of the evidence is in itself an essential element of the offense charged against the accused, the State is precluded from denying that the defendant has the requisite possessory interest to challenge the admission of the evidence. The Court neid that Jones v. United States, 362 U. S. 257 , 80 S. Ct. 725 , 4 L.Ed.2d 697 (1960), was still controlling law in Maryland, and that under the circumstances the defendant had automatic standing to raise the issue of the validity of the search and seizure. The subsequent decision of the Court of Appeals in Duncan and Smith v. State, supra, makes it obvious that the trial court’s reason for the denial of the motion to suppress was incorrect. The appellant has consistently argued that the search and seizure of his motorcycle was illegal because of the proscriptions of the Fourth and Fourteenth Amendments to the United States Constitution.

Our appellate review is limited to the evidence that was submitted to the trial court, out of the presence of the jury, at the hearing on the motion to suppress the evidence obtained as a result of the search of the motorcycle. Glover v. State, 14 Md. App. 454 , 287 A. 2d 333 (1972). We have reached the conclusion that the trial court’s denial of the motion to suppress was correct. Cardwell v. Lewis, 417 U. S. 583 , 94 S. Ct. 2464 , 41 L.Ed.2d 325 (1974), was before the Supreme Court on certiorari from the United States Court of Appeals, Sixth Circuit.

In a habeas corpus proceeding, the United States District Court for the Southern District of Ohio had ruled the warrantless examination of the exterior of a vehicle was a search violative of the Fourth and Fourteenth Amendments. 3 The Sixth Circuit affirmed. 4 The Supreme Court in a plurality opinion reversed. 5 The case arose out of the murder of a ¹²⁹ victim who had died as a result of shotgun wounds. Tire tracks from a vehicle other than that in which the deceased’s body had been found were discovered at the scene. Casts were made of these tracks and, in addition, foreign paint was removed from the right rear fender of the vehicle in which the deceased was found. An investigation over a period of several months indicated that there was probable cause to believe Lewis was involved in the homicide.

Lewis was arrested by law enforcement officers who had secured an arrest warrant for his person. After his arrest, Lewis’ car keys and a parking lot claim check were released to the police. A tow truck was dispatched to remove the car from the parking lot where it had been left by Lewis, and the car was taken to the police impoundment lot. There a technician made a cast of the right rear tire of the vehicle, and it was found to match the cast of the tire taken at the scene.

In addition, paint samples scraped from Lewis’ vehicle were found to match those of the paint on the victim’s car. Both the District Court and the Sixth Circuit Court of Appeals held that the evidence obtained should have been excluded on the grounds that the scraping of the paint from the exterior of the car was an unlawful search, that it was not incident to the arrest, and that the seizure of the car could not be justified as a seizure of an instrumentality of a crime in plain view. Mr. Justice Blackmun, writing for the plurality, said at page 589, 90: “ ‘The decisions of this Court have time and again underscored the essential purpose of the Fourth Amendment to shield the citizen from unwarranted intrusions into his privacy ....’ At least since Carroll v. United States, 267 U. S. 132 (1925), the Court has recognized a distinction between the warrantless search and seizure of automobiles or other movable vehicles, on the one hand, and the search of a home or office, on the other. Generally ¹³⁰ less stringent requirements have been applied to vehicles .... ‘[T]he circumstances that furnish probable cause to search a particular auto for particular articles are most often unforeseeable; moreover, the opportunity to search is fleeting since a car is readily movable.

Chambers v. Maroney, 399 U. S., 50 -51.’ ” (citations omitted). At page 592 Mr. Justice Blackmun continued: “Under circumstances such as these, where probable cause exists, a warrantless examination of the exterior of a car is not unreasonable under the Fourth and Fourteenth Amendments.” The main thrust of the plurality opinion was that the Fourth Amendment was inapplicable. The Court said at pages 588-589: “The evidence with which we are concerned is not the product of a ‘search’ that implicates traditional considerations of the owner’s privacy interest. It consisted of paint scraping from the exterior and an observation of a tread of a tire on an operative wheel.

The issue, therefore, is whether the examination of an automobile’s exterior ... invades a right to privacy which the interposition of a warrant is meant to protect.” (Emphasis in original). The plurality opinion went on to conclude that a citizen had no constitutional expectation of privacy in the exterior of an automobile. At page 591 the opinion stated: “In the present case, nothing from the interior of the car and no personal effect, which the Fourth Amendment traditionally has been deemed to protect, were searched or seized and introduced in evidence. With the ‘search’ limited to the examination of the tire on the wheel and the taking of paint scrapings from the exterior of the vehicle ¹³¹ left in the public parking lot, we fail to comprehend what expectation of privacy was infringed.” 6 We agree with this reasoning.

We find no reasonable expectation of privacy in serial numbers stamped on a motorcycle readily visible to a cursory inspection. Under the circumstances, we find the rights guaranteed under the Fourth Amendment inapplicable. Though the ground for the denial of the motion to suppress was incorrect, the action