Holland v. State

⁵³⁵ MOYLAN, Judge. The appellant, John M. Holland, was convicted by a Washington County jury, presided over by Judge Frederick C. Wright, III, of conspiracy to distribute cocaine. On this appeal, he raises the three contentions 1) that Judge W. Kennedy Boone, III, at a pretrial suppression hearing, erroneously failed to suppress a motel key taken from the appellant’s belongings while the appellant was in custody at the Washington County Detention Center; 2) that Judge Wright erroneously admitted two separate items of hearsay evidence; and 3) that Judge Wright imposed an illegal sentence. Edwards v. United States and a Delayed Search-Incident The cocaine-selling enterprise that was the raison d’etre of the conspiracy in this case operated from Room 136 of the Venice Motel on the outskirts of Hagerstown.

A key to Room 136, which was found among the appellant’s belongings shortly after his arrest, was one of many bits of evidence linking the appellant to Room 136. It was that motel key that was the subject of the challenged suppression ruling. The appellant was arrested in downtown Hagerstown at approximately 10 P.M. on July 16, 1997. There is no issue before us challenging the propriety of that arrest.

By approximately 10:45 P.M., the appellant had been booked in at the Washington County Detention Center. Some of his property (not more particularly described) was taken from him and kept in safekeeping in some sort of property room or storage locker. The appellant had been arrested along with two other co-conspirators. It was while interviewing one of those conspirators, several hours after the initial arrest and the booking, that the police learned that one of the other two (including the appellant) had been in the possession of a key to Room ⁵³⁶ 136.

The police then discovered the key as part of the property that had been taken from the appellant. The appellant claims that the warrantless search of his property was an unreasonable search and seizure within the contemplation of the Fourth Amendment. Were this issue before us as of first impression, we would not hesitate to announce that there was nothing improper about that warrantless search. It is not necessary for us to be so bold, however, for we find that the situation is completely controlled by United States v. Edwards, 415 U.S. 800 , 94 S.Ct. 1234 , 39 L.Ed.2d 771 (1974).

The appellant himself cites and quotes from Edwards but, significantly, only from the dissenting opinion of Justice Stewart. We are controlled, of course, by the majority opinion, which reached a result diametrically contrary to that urged by Justice Stewart’s dissent. The Edwards case, of course, is what it is. If it is deemed desirable for purposes of academic clarity, however, to locate the Edwards situation within one of the more familiar and firmly rooted exceptions to the warrant requirement, it would not be inappropriate to think of Edwards as a variation on the theme of search incident to lawful arrest.

Following a lawful arrest, without anything more needing to be shown, the police are routinely entitled to seize and to search all property within the arrestee’s reach, lunge, or grasp. Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969). The search incident may be, and usually is, conducted at the time and place of the initial arrest itself, the standard or typical situation. At the option of the police, however, it may be deferred until the arrestee has arrived at the jailhouse and is being booked or, indeed, might be deferred to some later time.

In this regard, the Edwards opinion, 415 U.S. at 802-03 , 94 S.Ct. 1234 , was very clear: The prevailing rule under the Fourth Amendment that searches and seizures may not be made without a warrant is subject to various exceptions. One of them permits warrantless searches incident to custodial arrest and has tradi ⁵³⁷ tionally been justified by the reasonableness of searching for weapons, instruments of escape, and evidence of crime when a person is taken into official custody and lawfully detained. It is also plain that searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention. (Citations omitted; emphasis supplied).

In the Edwards case itself, Edwards was arrested on the street at 11 P.M. He was taken to the local jail and placed in a cell. Subsequent investigation at the scene of the suspected burglary suggested to the police that inculpatory paint chips might well be found on the clothing of the burglar. It was the next morning, eight or nine hours after the initial arrest, that Edwards’s clothing was warrantlessly seized from him and then examined. Edwards sought to suppress that warrantless seizure and subsequent examination of his clothing as unreasonable.

The United States Court of Appeals for the Sixth Circuit agreed with Edwards and reversed his conviction. 1 The Supreme Court, in turn, reversed the Sixth Circuit. The Edwards opinion, 415 U.S. at 803 , 94 S.Ct. 1234 , cited to Abel v. United States, 362 U.S. 217 , 80 S.Ct. 683 , 4 L.Ed.2d 668 (1960), wherein the Supreme Court had held that it was immaterial whether the defendant’s property was immediately seized and searched at the time of his initial arrest at his hotel or thereafter at the place of detention. The Edwards Court went on: The courts of appeals have followed this same rule, holding that both the person and the property in his immediate possession may be searched at the station house after the ⁵³⁸ arrest has occurred at another place and if evidence of crime is discovered, it may be seized and admitted in evidence. Nor is there any doubt that clothing or other belongings may be seized upon arrival of the accused at the place of detention and later subjected to laboratory analysis or that the test results are admissible at trial. 415 U.S. at 803-04 , 94 S.Ct. 1234 (Footnotes omitted; emphasis supplied).

The Supreme Court went on to explain that a delayed “search incident” does not intrude any more on a protected right than a more immediate “search incident” would have done: This was and is a normal incident of a custodial arrest, and reasonable delay in effectuating it does not change' the fact that Edwards was no more imposed upon than he could have been at the time and place of the arrest or immediately upon arrival at the place of detention. The police did no more on June 1 than they were entitled to do incident to the usual custodial arrest and incarceration. 415 U.S. at 805 , 94 S.Ct. 1234 . It was clear, moreover, that the property subjected to the delayed search was already in the lawful custody of the police and, therefore, not immune from examination by them: It must be remembered that on both May 31 and June 1 the police had lawful custody of Edwards and necessarily of the clothing he wore. When it became apparent that the articles of clothing were evidence of the crime for which Edwards was being held, the police were entitled to take, examine, and preserve them for use as evidence, just as they are normally permitted to seize evidence of crime when it is lawfully encountered. 415 U.S. at 806 , 94 S.Ct. 1234 (Emphasis supplied).

A word is in order about the precise timing of the exigencies that historically has justified the phenomenon of a warrantless search incident to lawful arrest. The twin exigencies that gave rise to the exception were thoroughly analyzed in Chimel v. California , 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 ⁵³⁹ (1969), and need not be rehearsed here. Our concern is not with what the exigency is but with when the exigency is. When the police, on the street or at the station house, lawfully take an arrestee into custody, the twin exigencies of that custodial situation (concerning possible weapons and possible evidence) justify the warrantless search-incident at its inception.

Once the automatic police prerogative of conducting a warrantless search-incident vests, however, it is not necessarily divested just because it is not immediately utilized. The reasonableness clause of the Fourth Amendment does not hold a stop-watch on the police, commanding that as exigency arguably diminishes, the search-incident prerogative proportionately lapses. A delay in the execution of a search-incident, moreover, does not necessarily mean that the exigencies have been diminished. In the station house just as in the alley, there is a danger that an arrestee about to be placed in custody has on his person or in his attendant property 1) a possible weapon or 2) possible evidence of some crime possibly capable of being destroyed or hidden.

A delayed or even a follow-up search-incident (a more thorough or follow-up search-incident is not unreasonable) is frequently part of the booking procedure. When the property is taken from the arrestee, the Fourth Amendment intrusion is a fait accompli When, hours later, a crime lab technician picks up a gun from a storage locker to check it out ballistically, that is not a fresh Fourth Amendment intrusion requiring either a fresh exigency or a warrant for its justification. The danger of destruction is at an end once an arrestee’s property has been seized. That is the seizure, and the only seizure, that has Fourth Amendment significance.

The property may then be dusted for fingerprints, examined for bloodstains or DNA, checked for serial numbers, or otherwise processed on a more leisurely basis as an investigation unfolds. Every time that an item, already in police hands, is physically picked up and examined or reexamined, that is not a fresh Fourth Amendment intrusion requiring a fresh justification. ⁵⁴⁰ Once given the predicate fact of a lawful arrest, moreover, there is no incremental probable cause requirement for what is searched for and seized as an incident of that arrest. Just because the property seized, particularly in an institutional custodial setting such as in this case, is presumptively innocuous does not immunize it from subsequent examination and processing. An arrestee has no reasonable expectation that the police will not scrutinize closely those items'that are in their legitimate custody, discovering evidence, perhaps, even where none was initially suspected.

Our conclusion in this case is exactly what the Supreme Court’s conclusion was in that case: Indeed, it is difficult to perceive what is unreasonable about the police examining and holding as evidence those personal effects of the accused that they already have in their lawful custody as the result of a lawful arrest. United States v. Edwards, 415 U.S. 800, 806 , 94 S.Ct. 1234 , 39 L.Ed.2d 771 (1974)(Emphasis supplied). The appellant here protests that the property in question was being held for him in safekeeping after it had already been inventoried. The Supreme Court, in Edwards , made precise reference to a delayed warrantless search of inventoried property: In Cooper v. California, [ 386 U.S. 58 , 87 S.Ct. 788 , 17 L.Ed.2d 730 (1967)] an accused had been arrested for a narcotics offense and his automobile impounded preparatory to institution of forfeiture proceedings.

The car was searched a week later without a warrant and evidence seized that was later introduced at the defendant’s criminal trial---- It was no answer to say that the police could have obtained a search warrant, for the Court held the test to be, not whether it was reasonable to procure a search warrant, but whether the search itself was reasonable, which it was. 415 U.S. at 806-07 , 94 S.Ct. 1234 . The Edwards Court, 415 U.S. at 807 , 94 S.Ct. 1234 , quoted with approval from United States v. Caruso, 358 F.2d 184, 185 (2nd Cir.1966), wherein a defendant’s clothing had been taken ⁵⁴¹ from him and examined six hours after his arrival at the place of detention: He and his clothes were constantly in custody from the moment of his arrest, and the inspection of his clothes and the holding of them for use in evidence were, under the circumstances, reasonable and proper. The Supreme Court’s Fourth Amendment conclusion in Edwards was on all fours with the situation now under review: Caruso is typical of most cases in the courts of appeals that have long since concluded that once the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing, on the other hand, and the taking of the property for use as evidence, on the other. This is true where the clothing or effects are immediately seized upon arrival at the jail, held under the defendant’s name in the “property room” of the jail, and at a later time searched and taken for use at the subsequent criminal trial. 415 U.S. at 807 , 94 S.Ct. 1234 (Footnote omitted; emphasis supplied).

We hold that the key to Room 136 of the Venice Motel was properly not suppressed. “There They Are”: A Bit of Verbal Trivia Corporal Robert Leatherman testified that after the execution of a search warrant on Room 136 of the Venice Motel, he was transporting Teresa Russ and Brenda Tennie, two teenaged females who had been arrested in Room 136, from the motel to the police station. En route, one of the two young women spotted both the appellant and a codefendant on the street and suddenly blurted out, “There they are.” After clarifying that the antecedent of the pronoun “they” was two ⁵⁴² men who had earlier been in Room 136 of the Venice, the officer drove around the block, cut through an alley, and arrested the two. The appellant now objects to the introduction into evidence of the words “There they are” as inadmissible hearsay. Even if, arguendo, the admission of the evidence were error, it was demonstrably harmless beyond a reasonable doubt.

The night manager of the Venice Motel had already connected the appellant with Room 136 and with the suspicious activity that had occurred there on the previous night. Deputy Daniel Henley of the Narcotics Task Force had conducted a surveillance of Room 136 and observed the appellant leave the room. Following his arrest, the appellant had in his possession a key to Room 136. Teresa Russ, moreover, testified at great length about the appellant’s involvement with Room 136 and the drug activity that was emanating from it.

The additional passing identification of the appellant