Herring v. State

Liss, J., delivered the opinion of the Court. ²¹² Appellant, James Ricky Herring, was indicted by the grand jury for Prince George’s County for housebreaking under Maryland Code (1957,1976 Repl. Vol.) Art. 27, Section 30 (b); housebreaking under Art. 27, Section 31 A; two counts of larceny and two counts of receiving stolen goods. Appellant moved to suppress evidence seized from him on the ground that an unconstitutional search and seizure had taken place. After taking testimony and hearing argument, the trial judge denied the motion to suppress.

A court trial thereupon ensued during the course of which the State offered as Exhibits 1 and 2 the physical evidence seized from the appellant. Appellant objected to the admissibility of the evidence, the objection was overruled, and the exhibits were received in evidence. The trial court found the appellant guilty under the first count of the indictment and sentence was thereafter imposed. It is from this judgment that this appeal was filed.

The sole question raised by this appeal is whether the trial court erred in denying appellant’s motion to suppress and in overruling the appellant’s objection to the admission of the physical evidence seized by the State. The facts in the case are relatively uncomplicated. On June 13, 1978, the appellant and another individual were walking down Saint Barnabas Road in Hillcrest Heights, Maryland. Detective Morrissette, who was investigating several unsolved breaking and enterings in the area, suspected the appellant and his companion were involved in the incidents.

Morrissette, upon being notified that the appellant was present on Saint Barnabas Road, proceeded to intercept the appellant for questioning. The appellant was taken to the police station in Oxon Hill, Maryland and questioned in Detective Morrissette’s office. During the course of the questioning, the appellant removed a jacket (sweater) he was wearing and placed it on his chair. At the conclusion of the questioning, the appellant was allowed to leave.

In the course of leaving, appellant forgot that his jacket was hanging on the chair. The jacket contained several pockets, one of which was closed by a zipper. After appellant’s departure, Detective Morrissette took possession of the jacket, which he knew ²¹³ belonged to the appellant, and felt the pockets. Upon becoming aware that the zipped pocket contained some unknown objects, he unzipped the pocket and found several items of women’s jewelry.

Immediately upon seeing the jewelry, he suspected that it was contraband and locked the jewelry and jacket in his desk drawer. The detective maintained that his search of the jacket and the seizure of the jewelry was done for the purpose of protecting the property itself and the police from false claims. The State contends that the search and seizure involved was for the purpose of á bona fide inventory of the contents of the jacket for the purposes suggested by the detective. It is conceded that at the time of the search, the State had no knowledge of the theft of the jewelry nor of its ownership.

The following morning after the search of the jacket Detective Morrissette began an investigation of his files in an attempt to match the jewelry with a specific breaking and entry report. He was able to secure a match and proceeded to obtain an arrest warrant for the appellant. It is acknowledged by the appellant that the State came into legal custody of the appellant’s jacket when he forgot it in the interrogation room at the police station. We are required, however, to make an independent examination of the record and to determine whether the appellant’s constitutional rights have been violated.

Brookhart v. Janis, 384 U. S. 1, n. 4 , 86 S. Ct. 1245 , 16 L.Ed.2d 314 (1965); Waine v. State, 37 Md. App. 222 , 377 A. 2d 509 (1977). The parties agree, in view of the warrantless search of the jacket, that in order for the search to have been permissible it must have fallen within one of the recognized exceptions to the warrant requirement, and that failure to qualify under one of the exceptions would make the search per se unreasonable. Coolidge v. New Hampshire, 403 U. S. 443 , 91 S. Ct. 2022 , 29 L.Ed.2d 564 (1971); Waine v. State, supra. The State urges that this search fell within the ambit of the inventory search exception as expressed by the Supreme Court in South Dakota v. Opperman, 428 U. S. 364 , 96 S. Ct. 3092 , 49 L.Ed.2d 1000 (1976), wherein the Court found that an inventory search of an automobile in police custody usually ²¹⁴ flows out of the necessity on the part of police to inventory the contents of an automobile in order to secure or protect the car and its contents.

The Court’s rationale rested on the element of mobility of an automobile which warrants a privacy expectation significantly less than that relating to one’s office or home, and which demands less rigorous warrant requirements than would normally attach to a search and seizure situation. See Cardwell v. Lewis, 417 U. S. 583 , 94 S. Ct. 2464 , 41 L.Ed.2d 325 (1974); Camara v. Municipal Court, 367 U. S. 523 , 18 L.Ed.2d 930 , 87 S. Ct. 1727 (1967). The Court in Opperman, supra, in a majority opinion approved the inventory procedure when it stated: When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles’ contents. These procedures developed in response to three distinct needs: the protection of the owner’s property while it remains in police custody, United States v. Mitchell, 458 F.2d 960, 961 (CA9 1972); the protection of the police against claims or disputes over lost or stolen property, United States v. Kelehar, 470 F.2d 176, 178 (CA5 1972); and the protection of the police from potential danger, Cooper v. California, 17 L.Ed.2d 730 , 87 S. Ct. 788 .

The practice has been viewed as essential to respond to incidents of theft or vandalism. See Cabbler v. Commonwealth, 212 Va. 520, 522 , 184 S.E.2d 781, 782 (1971), cert. denied, 405 U.S. 1073 , 31 L.Ed.2d 807 , 92 S. Ct. 1501 (1972); Warrix v. State, 50 Wis.2d 368, 376 , 184 N.W.2d 189, 194 (1971). In addition, police frequently attempt to determine whether a vehicle has been stolen and thereafter abandoned. [ 49 L.Ed.2d at 1005 .] The Court also opined at 1007 that: The decisions of this Court point unmistakably to the conclusion reached by both federal and state courts that inventories pursuant to standard police procedures are reasonable. In the first such case, ²¹⁵ Mr. Justice Black made plain the nature of the inquiry before us: “But the question here is not whether the search was authorized by state law.

The question is rather whether the search was reasonable under the Fourth Amendment.” Cooper v. California, 386 U.S., at 61 , 17 L.Ed.2d 730 , 87 S.Ct. 788 (emphasis added). “[T]he Fourth Amendment does not require that every search be made pursuant to a warrant. It prohibits only ‘unreasonable searches and seizures.’ The relevant test is not the reasonableness of the opportunity to procure a warrant, but the reasonableness of the seizure under all the circumstances. The test of reasonableness cannot be fixed by per se rules; each case must be decided on its own facts.” Coolidge v. New Hampshire, 403 U.S., at 509-510 , 29 L.Ed.2d 564 , 91 S.Ct. 2022 (concurring and dissenting) (emphasis added). In Duncan and Smith v. State, 281 Md. 247, 259 (1977) the Court of Appeals held: [P]olice may, without regard to probable cause, and, thus, absent a warrant, constitutionally enter an automobile and unlocked compartments therein, and inventory and seize articles found, provided the vehicle had been otherwise legally taken into police custody and the inventorying was pursuant to a standard police procedure.

In United States v. Chadwick, 433 U. S. 1 , 97 S. Ct. 2476 , 58 L.Ed.2d 538 (1977), the Supreme Court distinguished between automobiles and luggage when a search incident to arrest and the automobile exception to the warrant requirement are involved. In Chadwick, federal agents, acting without a search warrant and without the consent of the arrested persons, but with a probable cause belief that a ²¹⁶ footlocker they had lawfully seized from the open trunk of a parked automobile contained contraband, opened the footlocker over an hour after the arrests and discovered large amounts of marijuana. The Court found that once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest, but that there may be justifications for a warrantless search of luggage taken from a suspect at the time of his arrest where the officers have reason to believe that the luggage may contain some dangerous instrumentality. See Shingleton v. State, 39 Md. App. 527, 543 , 387 A. 2d 1134 (1978).

Although we recognized in Waine v. State, supra, that Chadwick did not deal with inventory searches, we nevertheless saw “no reason why in an appropriate case an inventory search would not be as applicable to luggage as to automobiles, if the reasons for the station house inventory are as valid as the justifications for an automobile inventory.” 37 Md. App. at 232-33 . In deciding that “the police may, under appropriate circumstances, establish a routine procedure for inventorying the contents of any container lawfully seized,” id. at 233 , this Court tempered its decision in Waine by stating that the approval “of inventory searches does not provide a general license for the police to examine all the contents of the container”; that the inventory search must not be “inconsistent with protective custody”; and that to determine “[wjhether an inventory search was justified must depend on the facts of the individual search.” Id. at 234 . In the recent case of Cleckley v. State, 42 Md. App. 80 , 399 A.2d 903 (1979), police officers, while conducting a routine traffic stop noticed a revolver on the floor of the passenger compartment of the intercepted vehicle. The occupants of the car were arrested and taken to police headquarters.

The investigating officer took custody of the appellant’s vehicle and while driving to the station house