Dixon v. State

Moylan, J., delivered the opinion of the Court. With the possible exception of the “dropsy” cases, 1 no aspect of Fourth Amendment litigation has afflicted law enforcement with the yawning credibility gap wrought by ²¹ inventory searches. The conviction of the appellant, Clyde George Dixon, by Judge James Macgill in the Circuit Court for Howard County for (1) driving while under the influence of drugs in contravention of Article 66 1 /2, Section 11-902 (a), and (2) possession of barbiturates, occasions a hard look at the particular “inventory search” relied upon in this case specifically and at the constitutional validity of the inventory-search rationale generally. The Factual Background But for the all-too-real discomfiture of the appellant, the misadventure that brought him to his present sad estate was vintage Buster Keaton.

At 11 a.m. on November 6, 1972, he pulled innocently onto the parking lot adjacent to the Howard County Courthouse in Ellicott City and committed the fatal blunder of parking in a “no parking space” under the watchful eye of the Howard County Central Alarm headquarters. Thirty minutes later the episode was over, with the appellant in full custodial arrest, his car impounded and searched, and himself charged with the possession of barbiturates found in the course of that search. Juridically as well as botanically, “great oaks from little acorns grow.” The Courthouse and the Central Alarm headquarters occupy two sides of a common parking lot in Ellicott City. Immediately in front of Central Alarm, on November 6, 1972, were parked two large and mobile emergency generators.

Beside (or perhaps between) the generators were three “no parking spaces,” also immediately in front of Central Alarm. John Earp — a dispatcher for Central Alarm — was watching from the open doorway of his headquarters, which was up one flight of stairs and commanded a good view of the parking lot, as the appellant initially moved onto and across that lot. The appellant attempted to back his car into one of the prohibited spaces, a move requiring a sharp left-hand turn because of the generators. In the course of the maneuver, the left front fender of the appellant’s car struck one of the parked generators.

The appellant, without any apparent undue effort, then simply pulled forward and ²² renegotiated his way into an adjacent but also prohibited space. Earp called the police. Earp then accosted the appellant and reminded him that he had bumped the generator. The appellant replied that “it didn’t seem to be damaged too bad” and, according to Earp, “seemed to be indifferent to the fact.” Dismissing the subject of the accosting, the appellant then asked Earp for and received directions to the jail, which was one floor below Central Alarm.

Chagrined at the appellant’s nonchalance, Earp then placed a second call to the police to inform them that the subject of the first call had “left my location and gone down to the jail.” Earp positioned himself on a catwalk outside Central Alarm and maintained his vigil. Shortly thereafter, the appellant left the jail and started up the stairs to the parking lot level. Earp observed him “stumble” (but not fall) as he climbed the stairs. The appellant immediately regained his balance and walked across the parking lot toward the Courthouse.

In going around a solid rank of parked cars, the appellant, still under Earp’s surveillance, “walked into the back of a car parked right on the corner, at which time he — then he continued toward the Courthouse.” Earp placed yet a third call to the police to keep them current on the appellant’s movements. A few minutes later, Earp observed the appellant return from the Courthouse toward his car. A fourth call was placed to the police. Earp, now partially distracted by other duties, finally observed the appellant getting into his car and leaving the parking lot.

Earp conceded that, generally speaking, the appellant “seemed to be walking fairly normally” and that nothing was unusual about his breath. The only other witness in the case was Patrolman First Class Steven Greisz of the Howard County Police Department. He, with his partner, was on routine patrol north of Ellicott City when he received a radio dispatch that “a parking violation” had occurred “in the Courthouse parking lot.” When the officers arrived at the scene, the appellant had not yet returned to his vehicle. Instead of routinely writing out a ticket and leaving it under the windshield wiper, the officers ran a computerized check on ²³ the car and “found it not to be stolen and so forth.” The testimony is somewhat equivocal as to whether or not the officers deliberately waited for the parking violator to return to the scene of his violation rather than simply leave the ticket and move on.

On cross-examination, Officer Greisz asserted that the appellant returned to his car before the writing of the warning ticket was completed. On direct examination, Officer Greisz characterized his attitude as, “While we were there, hopefully awaiting the occupant or the driver to come to the car . . . .” In any event, the appellant returned. Officer Greisz accosted him, “Sir, would this be by any chance your vehicle?” The appellant acknowledged that the car belonged to his sister (who lived with him in Baltimore) but that he had been driving it. Upon demand, the appellant produced license and registration card, both of which were in good order.

The officer served a warning ticket on the appellant for the parking violation and asked the appellant to move the car. The appellant got in the car and Officer Greisz, with his partner, ostensibly left the area. They moved, however, only so far as a contiguous “back parking lot” in order to maintain a discreet surveillance on the appellant. In the course of this move, they “lost him.” The appellant had apparently walked back to the Courthouse.

The officers immediately returned to the scene of the parking violation and soon located the appellant. Officer Greisz told him that if he did not move the car immediately, he would receive a ticket instead of a mere warning. The appellant, at this urging, then moved his car to the “back parking lot.” The officers followed him closely. Under their scrutiny, the appellant blundered again.

He attempted to park in “a striped area which is not a designated parking space” instead of in a proper area which is “designated by white lines in the back Courthouse parking lot.” Officer Greisz “advised him that he had to park in a proper space, which he did at that time.” The officers, ultimately mollified, drove off. Although the ultimate characterization of the appellant by Officer Greisz was an amalgam of observations made ²⁴ during this initial encounter and twenty minutes later at the time of the appellant’s arrest, the bulk of the characterization refers to the appellant during the initial encounter. Officer Greisz summarized: “I observed, as I said, at the time of arrest and also at the time I issued Mr. Dixon his warning in the parking area down in front of Central Alarm headquarters, that his breath was apparently normal. There was no — I couldn’t detect any odor of alcohol on his breath at that point.

The color of his face was normal, his clothes were in an orderly fashion. His attitude during a majority of the, my confrontation with him, was polite and cooperative. He had, as far as I know, no unusual actions, no profanity or anything like this. He eyes were slightly bloodshot, his balance was fair 2 and his walk was fair.

His turning ability was fair. His speech was slurred.” As to the initial encounter, the bottom line is that the officers, after speaking with the appellant and after observing him drive his car, were satisfied to let the warning for the parking violation suffice. The.incident as far as they were concerned having ended, they drove off. Some twenty minutes later, the two officers were at the Golden Triangle Shopping Center at the intersection of Route 40 and Route 29 when a second of the calls, of the total of four dispatched by Earp to the police, caught up with them.

Not comprehending that the initial complaint had come in four times and that they were still getting (and were yet to get)' Repetitions of the complaint which they had already handled, the officers- obviously surmised that the appellant was back down in the prohibited parking space in front of Central Alarm, from which they had driven him twenty minutes earlier. The officers hurried back to the Courthouse. As they climbed the steep hill of Court Avenue ²⁵ in their final approach to the Courthouse, yet a third of the original four complaints caught up with them. It was the one that informed them that the appellant had bumped into the generator.

They concluded that this had happened as they were hurrying back to the scene. These two anachronisms were uppermost in the minds of the officers when they approached the Courthouse and “observed the car on the back parking lot in motion.” They turned on their emergency lights, moved to the rear of the appellant’s car and motioned for the appellant to stop. He stopped. Officer Greisz immediately advised the appellant “that I was placing him under arrest at this point for driving while intoxicated.” Without another observation being made or another word being said, the appellant was removed from his vehicle.

According to Officer Greisz, “At this point he was searched, a frisk search for weapons at that point, and advised he was under arrest. He was placed in the police vehicle and advised of his Miranda rights.” A subsequent search of the appellant’s automobile produced from the back seat two white tablets, which were analyzed and found to be controlled barbiturates. The critical character of that seizure is patent, since the two tablets were the gravamen of the possession charge, on which the appellant was convicted and sentenced to a term of eighteen months. They were also indispensable exhibits in proving the charge of driving while under the influence of a drug, for which the appellant was sentenced to a term of six months to be served concurrently with the other sentence.

We turn now to the legitimacy of that seizure. I Search Incident and Carroll Doctrine Rationales Inapplicable Of the recognized exceptions to the warrant requirement, Katz v. United States, 389 U. S. 347, 357 , 88 S. Ct. 507, 514 , 19 L.Ed.2d 576, 585 (1967); Coolidge v. New Hampshire, 403 U. S. 443, 454-455 , 91 S. Ct. 2022, 2032 , 29 L.Ed.2d 564, 576 (1971), neither the search incident to a lawful arrest nor the ²⁶ so-called “automobile exception” (the Carroll Doctrine) need detain us long. The search of the automobile cannot be legitimated as an incident of the appellant’s arrest for several quite distinct reasons. At the very threshold of search incident theory, the search must be incident not merely to an arrest but to a lawful arrest.

A violation of Article 66 1 /2, Section 11-902 (a), is a misdemeanor. A warrantless arrest for a misdemeanor is permitted only when the misdemeanor occurs in the presence of the arresting officer. When the officers returned to the Courthouse parking lot, they observed nothing but the appellant driving his automobile on the back parking lot of the Courthouse. Under our obligation to make an independent review of the evidence where constitutional issues are involved, we find as a constitutional fact that no probable cause existed to arrest the appellant for driving while intoxicated.

Even permitting the officers their mistaken beliefs produced by the communications mix-up, we do not find that parking in a prohibited parking space or even bumping into a generator add up to probable cause to believe that the driver is intoxicated. Indeed, full personal observation of the appellant’s speech and behavior some twenty minutes earlier had not led the officers to any such conclusion. Without a lawful arrest, there can be no constitutional search incident. Even if the arrest had been lawful, however, the search was not “essentially contemporaneous” with the arrest.

It occurred a short, but nevertheless significantly measurable, time thereafter. The unity of time was not satisfied. Preston v. United States, 376 U. S. 364 , 84 S. Ct. 881 , 11 L.Ed.2d 777 (1964). The search was, furthermore, beyond the permitted search perimeter of Chimel v. California, 395 U. S. 752 , 89 S. Ct. 2034 , 23 L.Ed.2d 685 (1969).

The State urges strenuously upon us United States v. Robinson, 414 U. S. 218 , 94 S. Ct. 467 , 38 L.Ed.2d 427 (1973), and Gustafson v. Florida, 414 U. S. 260 , 94 S. Ct. 488 , 38 L.Ed.2d 456 (1973), as legitimating a full search incident after a traffic arrest. The principle of Robinson and Gustafson is not here apposite. They dealt with the purpose of a search incident and not its geographic ²⁷ range in space. They did not purport to alter, and indeed did not alter, the “wingspan” limitation of Chimel , whereunder a search incident is limited to that area within the lunge, within the reach, within the grasp of the arrestee — the area “which may fairly be deemed to be an extension of his person” — the area within which the arrestee might grab for weapons or destroy evidence.

In the instant case, the appellant-arrestee was safely ensconced in the police car when the search of his own automobile took place some appreciable distance away — clearly beyond his “wingspan.” Nor may the State rely upon the so-called “automobile exception” under Carroll v. United States, 267 U. S. 132 , 45 S. Ct. 280 , 69 L. Ed. 543 (1925). Neither of the constitutional prerequisites — probable cause to believe that the automobile contained evidence of crime and exigent circumstances — was established. The State, indeed, eschewed all reliance upon “automobile exception” theory. II The Inventory Search as a Launching Pad for a Plain View Doctrine Seizure Before analyzing the “inventory search” in issue, it is initially necessary to place inventory searches generally in their proper analytical frame of reference.

An inventory search of an automobile is not an automobile search within the meaning of the “automobile exception.” Untold confusion has resulted from the mistaking of functional categories for analytical categories. Many examinations of the interior of an automobile, functionally speaking (that is, an inspection for some purpose or another of a vehicle that has four wheels and a motor), have nothing whatsoever to do with the “automobile exception,” analytically speaking. Preston v. United States, supra, involved the search of an automobile, but was a “search incident” case and not an “automobile exception” case, analytically speaking. And see Howell v. State, 18 Md. App. 429 , 306 A. 2d 554 (1973), reversed on factual insufficiency but preserving the frame of analysis in Howell v. State, 271 Md. 378 , 318 A. 2d 189 (1974). ²⁸ Harris v. United States, 390 U. S. 234 , 88 S. Ct. 992 , 19 L.Ed.2d 1067 (1968), involved the seizure of an incriminating item of evidence from an automobile but was a Plain View Doctrine case and not an “automobile exception” case, analytically speaking.

A similar dichotomy between the literal probing into an automobile, functionally speaking, and a Plain View Doctrine seizure, analytically speaking, occurred in Cady v. Dombrowski, 413 U. S. 433 , 93 S. Ct. 2523 , 37 L.Ed.2d 706 (1973). Conversely, all searches and seizures involving the “automobile exception” (or preferably, the Carroll Doctrine), do not necessarily involve actual automobiles or other vehicles, in 'the functional sense. The search of suitcases and other moveable boxes, cartons and containers are “automobile exception” (or Carroll Doctrine) cases, in the analytical sense, even though not involving automobiles or other vehicles, in the functional sense. Waugh v. State, 20 Md. App. 682 , 318 A. 2d 204 (1974); People v. McKinnon, 103 Cal.

Rptr. 897 , 500 P. 2d 1097 (1972); United States v. Valen, 479 F. 2d 467 (3rd Cir. 1973). The distinction was well illustrated by the Supreme Court in Coolidge v. New Hampshire, supra, when in Part II of its opinion it dealt with the search of the same automobile, in the literal and functional sense of the word, under three separate analyses — Part II-A applying a “search incident” analysis to the search of the car, Part II-B applying an “automobile exception” analysis to the search of the car and Part II-C applying a Plain View Doctrine analysis to the search of the car. Confusion would be avoided if lawyers and courts would remember that what triggers an “automobile exception” analysis is not the presence of an internal combustion engine connected with a set of wheels but rather an argument based upon the conjoining of probable cause and exigent circumstances. A reverting to the older usage of “Carroll Doctrine” as the appropriate label for this recognized exception to the warrant requirement might avoid much of the confusion engendered by the word “automobile’s” having both a functional and an analytical connotation. ²⁹ In terms then of constitutional significance, it becomes preeminently clear that an inventory search of an automobile is not an “automobile exception” case.

The inventory search, by definition, purports to be a mere listing of personal property and not a deliberate search for evidence. The “automobile exception” search is a deliberate search for evidence. An inventory search is not based upon probable cause; an “automobile exception” search must be based upon probable cause to believe that the automobile contains evidence of crime. The inventory search need not be based upon any exigency; the “automobile exception” search is absolutely dependent upon the presence of exigent circumstances.

If an inventory search of an automobile is not an “automobile exception” search, what then is it? Assuming for the moment that the making of an inventory is a legitimate excuse for intruding into the constitutionally protected area of a man’s automobile, it is clear that that entry is a “prior valid intrusion,” one of the two necessary elements to bring into play the Plain View Doctrine. Once there has been a prior valid intrusion, if there is then an inadvertent spotting of evidence of crime in plain view, that evidence may be seized under the Plain View Doctrine. Coolidge v. New Hampshire, supra; Brown v. State, 15 Md. App. 584 , 292 A. 2d 762 (1972).

A review of inventory searches, therefore, proceeds under a Plain View Doctrine analysis. Ill No Probable Cause to Believe Pills in Plain View Were Contraband Assuming again that the making of an inventory (if bona fide) is a legitimate excuse for intruding into the constitutionally protected area of a man’s automobile, entry into the automobile in pursuit of that purpose would constitute a prior valid intrusion. And there is no question but that the two pills ultimately seized in this case were ³⁰ inadvertently spotted and that they were literally in plain view: “A. As I said, I was searching for valuable personal property, to keep for the defendant, so nothing would happen to it. There was nothing in the front area of the car.

The vehicle had bucket seats. I moved the bucket seat on the passenger side forward, and immediately upon looking into the back seat, on, in plain view, on the back seat — Mr. Kroop: Object again, to the characterization, Your Honor. Apparently he’s been reading several cases of the Court of Special Appeals. THE COURT: Maybe he’s heard counsel.

Mr. Kroop: We’ll object to that. Key words are coming out. THE COURT: Well, just — I can’t object to his using the language the rest of us use. Go ahead.

A. On the back seat of the vehicle I observed two pills. BY MR. HORVITZ: Q. And what, if anything, did you do with these pills? A. I took the pills into my possession and placed them in an envelope at that point.

Q. And — A. I’m not sure if I placed them in the envelope then or at the station, but at any rate I confiscated the pills at that point.” It is equally clear that Officer Greisz had no probable cause to believe that the pills were contraband, but nevertheless arbitrarily escalated his effort from the protective listing of personal property to an investigative “fishing expedition” for criminal evidence: “Q. All right, now, these two pills, you had no idea what they were, did you? A. No. sir. no idea. ³¹ Q. Of course, you told Judge Macgill the reason you went through the vehicle was for this client, the defendant’s protection? A. Yes, sir, it’s our policy, in the police department. Q. Right.

I mean, you want to protect and secure everything that he had. A. Yes, sir. Q. Is that correct? And when you saw these two pills you had no more idea whether they were aspirin or sleeping pills or whatever, isn’t that correct?

A. That’s correct, sir. Q. All right. Yet you took them out in an envelope for his security? Or did you take them out with the idea that you wanted to test them, to see if they were a prohibited drug?

A. Well, I recovered them, and after bringing them from the car I decided to have them tested. A. . . . The search was done as an inventory. It just so happened that I viewed the pills.

Q. Oh, I understand that, but you’ve already told us that you took the pills, not for his safekeeping, but for the purpose of trying to obtain evidence to be used against this man in a court of law? A. Yes, sir.” It is beyond cavil that a prior valid intrusion will not in and of itself justify an indiscriminate seizure of all items that happen to be visually in plain view, but that probable cause must exist to believe that the items ultimately seized are, indeed, contraband or other evidence of crime. The point was dealt with by the three justices of the Supreme Court in Stanley v. Georgia, 394 U. S. 557 , 89 S. Ct. 1243 , 22 L.Ed.2d 542 (1969), who reached the Fourth Amendment issue in the case. In that case, Georgia law enforcement officers searched Stanley’s home under a valid warrant authorizing them to search for evidence of illegal