England and Edwards v. State

Levine, J., delivered the opinion of the Court. After a jury in the Criminal Court of Baltimore had convicted petitioners, James Lee Stanley England (England) and Thomas Edwards (Edwards), on charges of rape, perverted sexual practices and assault, the trial judge (Hinkel, J.) sentenced them to imprisonment for the balance of their natural lives on the rape convictions, and suspended the imposition of sentence on the remaining offenses. On appeal to the Maryland Court of Special Appeals, the convictions were affirmed in England and Edwards v. State, ²⁶⁶ 21 Md. App. 412 , 320 A. 2d 66 (1974). We then granted a Writ of Certiorari.

The nature and scope of the questions presented on appeal to this Court obviate the need for a detailed account of the crimes. Suffice it to say that on the evening of December 8, 1972, the prosecutrix was abducted at knifepoint by petitioners while walking near her residence in Baltimore, and was taken by them in England’s automobile to Druid Hill Park. There, she was repeatedly raped by the use of violence and threats, and was forced to engage in perverted acts. She finally managed to free herself and was driven to her home by the occupants of another automobile.

On reaching the safety of that vehicle, she was able to obtain the license number of the England car. Immediately upon arriving at her residence, the prosecutrix telephoned the police. Responding to that call, Officer William Harris arrived at 12:15 a.m. on December 9. She not only furnished him the license number, but provided remarkably detailed descriptions of the assailants and the automobile.

She also advised the officer that the driver was called “Lee” by his companion, and that the latter had a pronounced keloid scar on his side which the victim had felt while she was being raped by him. She described the automobile as light in color, having a brown decal or contact paper decorating the front fenders. The prosecutrix was then taken to Central Police Station where, following a medical examination, she readily identified England by selecting his photograph from a group of eight shown to her by Officer Harris. The officer had already learned from the Motor Vehicle Administration that the automobile bearing the tag number furnished by the prosecutrix was owned by England.

On that same day — December 9 — Officer Harris and his supervisor went to the England address, but were informed by his mother that he was not at home. He subsequently surrendered to the police on December 11. On December 12, Officer Harris learned from a fellow officer, Detective Giangrasso, that the latter had just ²⁶⁷ observed the automobile at the England residence. He responded to that location and observed, parked in the street in front of the England residence, a yellow Dodge Dart bearing the license number furnished by the prosecutrix.

There was a small patterned or textured design along the fender and the front of the car. Noting that the car was unlocked, Officer Harris then called the police crime laboratory and requested that a technician be dispatched to the scene. Together, they conducted a warrantless search of the automobile. Among the objects disgorged by that search — and removed by them — was a soiled towel on which seminal fluid and spermatozoa were found by microscopic examination.

The prosecutrix had related to Officer Harris that England had “wiped himself” with a towel which he had pulled from beneath the driver’s seat. In addition, Officer Harris obtained a tape recording of a song called “The Coldest Day of My Life” from England’s brother at the residence. While the attacks were being carried out, the prosecutrix had heard this song being played on a device mounted on the bottom of the dashboard in the automobile. The officers took photographs of the interior of the automobile which were received in evidence.

A motion to suppress the evidence seized from the automobile was denied during the trial. When England was interrogated by Detective Giangrasso at the Baltimore City jail on the 13th, he claimed to have been elsewhere with his girlfriend and one Thomas Edwards while the crimes were being perpetrated. A day or two later, the detective showed five photographs to the victim who readily selected one of petitioner Edwards and positively identified him as the second rapist. At the trial, the prosecutrix, without objection, made positive in-court identifications of both petitioners as her two assailants.

These contentions are presented here: 1. That the trial judge erred in refusing to suppress the evidence seized during the warrantless search of the automobile. ²⁶⁸ 2. That the trial judge erred in refusing to grant one of petitioner Edwards’s requested instructions. 3. That the life sentences imposed upon petitioners were invalid because the trial judge did not explicitly instruct the jury that if it qualified a guilty verdict by adding the words “without capital punishment,” the maximum punishment which could then be imposed would be a sentence of 20 years.

In the alternative, they urge that we strike down the sentences on the rape convictions as being illegal in light of Furman v. Georgia, 408 U. S. 238, 92 S. Ct. 2726 , 33 L.Ed.2d 346 (1972). (1) When the State sought to elicit testimony from Officer Harris regarding the December 12 search conducted by him and the laboratory technician, petitioners moved to suppress any evidence seized from the automobile. 1 The trial judge then excused the jury and heard oral argument from counsel. 2 At the conclusion of the hearing, the trial court denied the motions and, finding there was probable cause to search the automobile coupled with exigent circumstances, admitted the seized evidence under the so-called “automobile exception” to the Fourth Amendment proscription against warrantless searches and seizures. On appeal to the Court of Special Appeals, that court concluded that the search and seizure were illegal because there were no exigent circumstances preventing the police officer from obtaining a warrant to search the automobile, but held that the error was harmless beyond a reasonable doubt, England and Edwards v. State, supra, 21 Md. App. at 416-20 . We think that such exigent circumstances were present. ²⁶⁹ As we observed in Mobley and King v. State, 270 Md. 76, 80 , 310 A. 2d 803 (1973), cert. denied, 416 U. S. 975 (1974), the “automobile exception” had its genesis in Carroll v. United States, 267 U. S. 132 , 45 S. Ct. 280 , 69 L. Ed. 543 , 39 A.L.R. 790 (1925).

In Mobley and King , Chief Judge Murphy said for the Court: “. . . Under [the ‘automobile exception’], a motor vehicle, unlike a home, may be searched without a warrant or previous arrest under appropriate circumstances when the officer has probable cause in the constitutional context to believe that the vehicle contains the fruits, instrumentalities, or other evidence of a crime. See, Dyke v. Taylor Implement Mfg. Co., Inc., 391 U. S. 216 , 88 S. Ct. 1472 , 20 L.Ed.2d 538 (1968); Brinegar v. United States, 338 U. S. 160 , 69 S. Ct. 1302 , 93 L. Ed. 1879 (1949); Scher v. United States, 305 U. S. 251 , 59 S. Ct. 174 , 83 L. Ed. 151 (1938); Husty v. United States, 282 U. S. 694 , 51 S. Ct. 240 , 75 L. Ed. 629 (1931); United States v. Lee, 274 U. S. 559 , 47 S. Ct. 746 , 71 L. Ed. 1202 (1927).

Since the rule is justified on the basis that an automobile is so readily movable as to make impracticable the obtaining of a search warrant, the existence of exigent circumstances must be shown in addition to probable cause to validate the warrantless search. . . .” 270 Md. at 80-81 . At the outset, petitioners readily concede that the police, at the time of the search here, had probable cause to believe that the automobile contained the “fruits, instrumentalities or other evidence of a crime.” They argue forcefully, however, that there were no exigent circumstances. The cardinal principle upon which petitioners bottom their attack is that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U. S. ²⁷⁰ 347, 357, 88 S. Ct. 507 , 19 L.Ed.2d 576 (1967). The “automobile exception” — the only one capable of justifying the search here — is not applicable, they say, because the element of unforeseeability, so essential to its application, is lacking.

They rest this contention on Coolidge v. New Hampshire, 403 U. S. 443 , 91 S. Ct. 2022 , 29 L.Ed.2d 564 (1971). In agreeing with this argument, the Court of Special Appeals also drew heavily upon Coolidge for support. The state counters this argument with the contention that Coolidge , said to be the only “automobile exception” case in which the Supreme Court has found a lack of exigent circumstances, arose out of a unique factual situation and is virtually sui generis. Moreover, it is contended, the element of unforeseeability was present here, since the police had been unable to locate the automobile until just prior to the search on December 12.

In short, the state maintains that there were exigent circumstances because the automobile could be quickly moved out of the “locality or jurisdiction”; hence, it was not practicable to obtain a search warrant. Unquestionably, the holding in Coolidge is severely circumscribed by its unusual facts. For example, a search and seizure warrant was actually obtained there, albeit one which was defective because it was issued by the Attorney General of the state acting as a justice of the peace, rather than by “a neutral and detached magistrate.” The police had known the identity of the automobile and its owner, and had possessed probable cause to search the vehicle, for several weeks before they actually attempted to do so. These facts alone overwhelmingly established the practicability of obtaining a valid search warrant.

The Coolidge automobile was immobilized upon a private driveway, where it had been parked regularly. Not only had he been arrested, but his wife had been placed in what amounted to protective custody in another town before the search was initiated. The Coolidge premises, although totally unoccupied, were nevertheless guarded throughout the night by two policemen. There were no “confederates” who might have moved or destroyed the evidence.

In rejecting application of the Carroll doctrine, the ²⁷¹ Coolidge Court, quoting in part from Chambers v. Maroney, 399 U. S. 42, 51 , 90 S. Ct. 1975 , 26 L.Ed.2d 419 (1970), emphasized that exigent circumstances arise when the car is “ ‘movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained.’ ‘[T]he opportunity to search is fleeting ....’” 403 U. S. at 460 . Thus, the Court said, “by no possible stretch of the legal imagination can this be made into a case where ‘it is not practicable to secure a warrant,’ . . . and the ‘automobile exception,’ despite its label, is simply irrelevant.” 403 U. S. at 462 . The facts here, indeed, stand in marked contrast to those in Coolidge . Although the police had known the identity of the vehicle and its owner for three days, it is apparent that they were unable to locate the car until just before they searched it on the 12th.

Only one inference can be drawn from the evidence — that they had been looking for it at the England residence during that entire period. After three days of failure, and with England already in custody and unavailable to drive it, the surprise appearance of the automobile on the street in front of his residence was as much a fortuity as might have been its discovery by the police while parked at some other location, or while it was actually being driven in that neighborhood. Furthermore, the absence of the owner from the car while it was being approached did not necessarily eliminate the mobility factor. Here there was ample opportunity for England’s “confederate,” who was still at large, to remove the car or its contents just as quickly as it had appeared.

One can readily understand why the police officer did not pause to obtain a warrant under those circumstances. The automobile was not only accessible to Edwards and members of England’s family, who had a set of keys in their home, but in its unlocked condition, it was fair game for any vandal who, noting the absence of its owner, might have wished to open the unlocked door. Unlike the Coolidge automobile, which was secured in a private driveway, the vehicle here was parked and, for all the police knew, completely unattended on a public street. ²⁷² In Chambers v. Maroney, supra, the Court said: “. . . Carroll, supra, holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained.

Hence an immediate search is constitutionally permissible.” 399 U. S. at 51 . From what we have said, it is evident that the car here was also movable, that one of its two occupants was alerted, and that the car’s contents might never have been found had the police officer interrupted his trip to obtain a search warrant. In short, the criteria postulated by Carroll for establishing exigent circumstances — still recognized by the Supreme Court today — are present in this case. That the car searched here, like its counterpart in CooUdge, was not stopped while being driven on the “open highway,” as was the case in Carroll, Brinegar and Chambers , does not defeat the claim of exigent circumstances.

Concededly, it is quite likely that in most cases where the claim is advanced, the