Gatling v. State

Liss, J., delivered the opinion of the Court. Appellant, Kenneth Edward Gatling, was convicted in a court trial in the Criminal Court of Baltimore of possession of heroin and illegal possession and transportation of a handgun. Sentences were imposed and it is from these judgments that this appeal was filed. Appellant made a motion to suppress and exclude certain evidence seized from his automobile at the time of arrest.

After a hearing the trial court denied the motion and appellant raises three issues arising out of that denial. They are: (1) Did the trial court err in denying appellant’s motion to suppress and exclude evidence where the ²⁵⁷ police officer did not have probable cause to believe that the vehicle contained fruits or instrumentalities of a crime and the evidence seized was not within the area of search incident to a lawful arrest? (2) Was the search of appellant’s automobile unreasonable because of the officers’ failure to obtain a search warrant? (3) Did the police officers who executed the search have probable cause because their informant lacked the veracity required under Aguilar v. Texas, 378 U. S. 108 , 84 S. Ct. 1509 , 12 L.Ed.2d 723 (1964)?

At the hearing to suppress, the State first produced Officer Finkinbinder who testified that on May 31st, 1976 he and his partner, Officer Tomak, were called to the Maryland General Hospital to see one Prentiss Benjamin who told them that shortly after he had won some money in a crap game he was accosted by a man he knew as Kenny who shot him twice and robbed him of his money. Benjamin had been drinking but according to the officers was not intoxicated. He described his assailant, the clothes he was wearing and stated that the gunman was operating a 1976 maroon Ford LTD with a black vinyl top and Maryland license tags. He did not know the tag numbers.

The officers went to the scene of the crime but were unable to find any relevant evidence. Four days later at about 3:15 a.m. while on routine patrol in the area where the robbery had taken place, the police officers spotted a Ford LTD which matched the description of the car driven by Benjamin’s assailant. The operator of the automobile also matched the description of the gunman given to the police by Benjamin. The officers pulled the car over and requested identification from the driver.

The appellant, Kenneth Gatling, presented a registration card in the name of Gatling and a driver’s license in the name of Kenneth Hawkins. He stated that he was Hawkins and that he had borrowed the car from his friend Gatling. The officer, suspicious of the automobile operator, requested him to give the date of birth specified on the operator’s license. Appellant gave a date which differed from that on the license.

While the officers were engaged in questioning Gatling, a passerby called to him, “Kenny can I ²⁵⁸ help you? Shall I call your mother?” On the basis of the totality of the information that the officers then had, they advised the appellant that he was under arrest for assaulting and robbing Prentiss Benjamin. 1 Appellant was placed in a position with his hands on the car above the rear door and Officer Finkinbinder looked into the vehicle and noticed a “gray rag” protruding from under the driver’s seat. He pulled the rag out and found wrapped in it a fully loaded handgun and five bags of heroin. A search of the glove compartment disclosed three additional bullets and an aluminum foil package containing six additional bags of heroin.

(1) (3) At issue in this case is the validity of the search of the automobile and the seizure of the contraband found therein by the officers. The warrantless search in this ease can be justified, if at all, only under the “automobile exception,” first enunciated by the Supreme Court in Carroll v. United States, 267 U. S. 132 , 45 S. Ct. 280 , 69 L. Ed. 543 (1925), or because the search was incident to a lawful arrest under Chimel v. California, 395 U. S. 752 , 89 S. Ct. 2034 , 23 L.Ed.2d 685 (1969). The general rule is that a warrantless search is per se unreasonable under the 4th Amendment subject only to a few specifically established and well delineated exceptions. Katz v. United States, 389 U. S. 347 , 88 S. Ct. 507 , 19 L.Ed.2d 576 (1967).

The Carroll exception states that a motor vehicle, unlike a home, may be searched without a warrant 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. Mobley and King v. State, 16 Md. App. 546 , 298 A. 2d 446 , aff’d, 270 Md. 76 , 310 A. 2d 803 (1973), cert. denied, 416 U. S. 975 (1974). In addition to probable cause, the existence of exigent circumstances 2 must be shown in order to justify the failure ²⁵⁹ to obtain a warrant and to validate the warrantless search. Coolidge v. New Hampshire, 403 U. S. 443 , 91 S. Ct. 2022 , 29 L.Ed.2d 564 (1971); Chambers v. Maroney, 399 U. S. 42 , 90 S. Ct. 1975 , 26 L.Ed.2d 419 (1970).

In Mobley and King, supra, the Court of Appeals stated that: “Probable cause to conduct a warrantless search of an automobile under Carroll and its progeny exists in the constitutional sense where the facts and circumstances within the officer’s knowledge, and of which he had reasonably trustworthy information, are such as would warrant a man of reasonable caution in believing that the vehicle contained articles lawfully subject to seizure. [Citations omitted].... To satisfy the probable cause requirement, therefore, an officer is not required to have actual knowledge that the vehicle contains fruits, instrumentalities or other evidence of a crime at the time he undertakes his warrantless search. ‘... [o]nly the probability, and not a prima facie showing, of criminal activity is the standard of probable cause ...’ Spinelli v. United States, 393 U. S. 410, 419 , 89 S. Ct. 584 , 21 L.Ed.2d 637 (1969).” 270 Md. at 81 . We think it is evident from the factual recitation we have heretofore set forth that there was ample probable cause for the officers to arrest the appellant as the perpetrator of the armed robbery alleged to have been committed in this case. The two pronged test of Aguilar v. Texas, supra, which requires a sufficient “basis of knowledge” for the information furnished to the police, was obviously met by the statement of the victim himself.

The “veracity” prong requires that the arresting officer have some reason to believe that his source was credible or his information reliable. Thompson v. State, 16 Md. App. 560 , 298 A. 2d 458 , cert. denied, 268 Md. 753 (1973). As Judge Moylan noted in Thompson , the relevant inquiry is, “was the information furnished under reasonable assurances of trustworthiness?” ²⁶⁰ Here, the informant, at the hospital receiving treatment for a gunshot wound, gave a detailed description of the incident describing the assailant and his automobile. While he had been drinking, he was apparently in full control of his faculties.

We find no reason to doubt that the information supplied by Benjamin to the police officers was sufficient to supply the probable cause for the apprehension of the appellant. Appellant urges, however, that even if, arguendo, there was probable cause to arrest the appellant, there was not sufficient probable cause to believe that the vehicle contained the fruits, instrumentalities or other evidence of the crime and that therefore the warrantless search of the car was an unconstitutional intrusion and any evidence seized should have been suppressed. He relies principally on Howell v. State, 18 Md. App. 429 , 306 A. 2d 554 (1973), rev'd, 271 Md. 378 , 318 A. 2d 189 (1974). In Howell, the appellant had broken into a house and robbed and assaulted the owner.

Two days later the victim selected a photograph of the appellant from a photo array and an arrest warrant was obtained. On the third day following the crime, the appellant was arrested, his car was searched and contraband was found. Appellant argues that Howell held that on the facts before the Court, the probable cause under Carroll was so attenuated over the intervening three days that it was diluted to the point of no return and that therefore Carroll did not apply. In this case, the intervening period is four days and obviously if Howell was decided as appellant suggests, it might well be dispositive of the issue here.

The problem for appellant, unfortunately, is that we find no such discussion in Howell. The ultimate decision in Howell rested upon a discussion of Chimel, supra. The basis for reversal was the Court of Appeals’ conclusion that the State had failed to meet its burden of establishing that the search and seizure was permissible under the standards enunciated in Chimel . The sole reference to Carroll in the original Howell case, before this Court is the statement that: “the search of the automobile cannot be predicated upon the ‘automobile exception’ because of the ²⁶¹ failure of Corporal Raymon to establish probable cause to believe that the