Kleinbart v. State

O’Donnele, J., delivered the opinion of the Court. Appellants, Hazel Elizabeth Mullin and Michael Neal Kleinbart (also known as Albert Feldman) were charged in a three (3) count Indictment returned by the Grand Jury for Prince George’s County with breaking and entering, on May 25, 1966, the dwelling house of Gerald Matthew LeCompte and Reba Veronica Wilson, with grand larceny of their personal property and with receiving stolen goods. After a non-jury trial on August 11, 1966, presided over by Judge Samuel W. H. Meloy, they were each found guilty of grand larceny and not guilty of receiving stolen goods. It does not appear from the record that the trial judge made any findings on the first count in the Indictment.

From the judgments imposed — five (5) years imprisonment as to Kleinbart and three (3) years imprisonment as to Mullin — they appeal, each contending that they were subjected to unlawful searches and seizures of the automobile in which they were riding at the time of their arrest and that the evidence offered against them was not sufficient to sustain their convictions. Appellant Mullin further contends that her oral statement offered in evidence against her was inadmissible. (a) Searches and Seizures At about 2:30 p.m. on May 25, 1966, Trooper Blazejak of the Maryland State Police was attracted to most erratic driving by Appellant Mullin, operating a 1960 white Ford Falcon ¹⁸⁵ sedan with Maryland registration; as she proceeded onto Route #5 from the parking lot at the Marlow Heights Shopping Center, she almost struck the curbing on the traffic island in the highway, swerved across the fast-lane of traffic, cutting off several cars which were required to stop suddenly and as she approached the red traffic signal at Colebrook Drive, the brakes were so suddenly applied that her passenger, Kleinbart, was caused to be thrown against the dash. The Trooper directed her, when the traffic signal changed, to pull onto the median strip.

She there identified herself by a driver’s license and registration card in the name of Dolores Marie Evans Smallwood (later ascertained to be her sister) of Landover, Maryland. She appeared to the Trooper to be “under the influence” and although she stated to him that she had had “only one beer,” in view of her driving and her appearance, he decided to charge her with a violation of Art. 66^2, Sec. 206 (Ann. Code, 1967 Repl. Vol.) — a misdemeanor. He crossed Route #5 to phone the State Police Post in Marlboro for assistance and while in the phone booth noticed that Kleinbart, who had been “passed out” on the front seat of the car, was then staggering and meandering across the traffic lanes of the busy highway to a parking lot on its opposite side.

Since Kleinbart appeared to the Trooper to be drunk, he was arrested for “public drunkenness” a misdemeanor in violation of Art. 27, Sec. 123 (Ann. Code, 1967 Repl. Vol.). When the Ford was stopped in the median strip and as Mrs. Mullin began to alight, “a container of pills” was noticed on the front seat. When Mrs. Mullin said they were hers, the Trooper returned them to her.

While talking to Mrs. Mullin, Trooper Blazejak noticed a number of articles of clothing apparently thrown on the rear seat of the car, but made no inspection of them and at the time of trial, could not describe them. In response to his call, Troopers Arnold and Riffee, within about 5 minutes, arrived at the scene; Appellants were transported to the State Police Post by Trooper Arnold and the Ford sedan, and all its contents, was towed within a 15 or 20 minutes interval to Cole’s Amoco Station, located at the intersection of Routes #5 and #414, after a tow-truck had been dispatched to the scene upon the request of Trooper Arnold. ¹⁸⁶ At the Police Post, about one hour after her arrest, Appellant Mullin was charged — in her sister’s name — with operating a motor vehicle under the influence of narcotics (Art. 66%, Sec. 206, supra) and was charged — in her correct name — apparently on the next day, with reckless driving, Art. 66%z, Sec. 209 (Ann. Code, 1967 Repl. Vol.). When at the Police Post, it was ascertained that Kleinbart was not under intoxication of alcoholic origin, but apparently of narcotics, he was sent to the Prince George’s Hospital by ambulance.

After issuing the traffic summons on May 25th, Trooper Blazejak withdrew from the case (except to issue the summons for reckless driving on May 26th) and turned the case over to Corporal Ansell of the Criminal Investigation Division. Trooper Arnold testified that he summoned the tow-truck in order “to store the vehicle, because we were responsible for the car;” that Appellant Mullin was charged with operating under the influence of narcotics after a negative breathalyzer test (Art. 35, Sec. 100, Ann. Code, 1965 Repl. Vol.), which she voluntarily took and after she admitted taking a named narcotic. He described Kleinbart, when they arrived at the Post, as being “passed out,” that his legs were jumping up and down and with his eyes closed, his head was bobbing back and forth.

He carried a Selective Service card issued in the name of Albert Feldman. At about 2:20 p.m. the same afternoon, Trooper Arnold had noticed Kleinbart in the vicinity of Hillcrest Heights Apartments, to which the Trooper had been dispatched to answer a domestic complaint, when he saw Kleinbart walk past him in an alley toward the Apartments. Shortly after 4:00 p.m. (approximately one and one-half hours after the arrests) Trooper Arnold went to the service station to which the car had been towed and “to protect the property” removed from it clothing which was piled on the back seat, “checkbooks from up front” and from the trunk, “jewelry, watches and film,” apparently in suitcases.

He testified he removed the property in order that it could be stored at State Police Barracks “H”. After having locked the car at the service station, he turned over to Corporal Ansell 'its keys, as well as all the property, so that it could be inventoried. Over ¹⁸⁷ objections by both Appellants, Trooper Arnold described the property he removed as: “Suitcases, clothing; a wig, jewelry, watches, earrings, cuff-links, tie clasps, and film (in one of the suitcases) ; and checkbooks in a broken paper bag.” He testified that as he removed the property from the car, he then suspected that some sort of crime had been committed, “suspected that the articles may have been stolen,” since he noticed a different name than the defendant’s on a man’s engraved watch removed from the vehicle. At the Marlboro Post, at about 4:30 p.m., he marked with his initials for identification purposes, the watch, which he had recovered from the trunk.

He further identified, over objections by both Appellants, a suitcase and its contents, a transistor radio, cuff links, a camera and checkbooks. Trooper Riffee, also attached to the Criminal Investigation Division, testified that on Corporal Ansell’s directions he went to the Prince George’s Hospital to get Kleinbart to voluntarily return to the Police Post; that at that time he had no knowledge that any crime had been committed, that Kleinbart was not placed under arrest and did agree voluntarily to return to Marlboro with him. He identified at the trial a sport coat as “resembling the one” Kleinbart carried with him after his release from the hospital and which he was wearing at the Police Post. Corporal Ansell, after having received a large quantity of personal property from Trooper Arnold, directed Trooper Riffee to ask Kleinbart to return to the Police Post in order “to get the property squared away, since a name on some of the property differed from that on the driver’s license,” and stated it was necessary to list the property and to learn the identity of the owner.

When he first saw Kleinbart at about 8:30 p.m., he told the Corporal that he knew nothing about the property and that it was not, to his knowledge, stolen. Corporal Ansell acknowledged that since there was no report at that time of any of the property having been stolen, Kleinbart was not charged nor was he suspected of any crime; he made several telephone calls to persons whose names appeared on some of the property and spoke to Gerald Matthew LeCompte (who lived in Hillcrest Heights and who returned to his apartment about 7:00 p.m. to discover his apartment had been broken into and ¹⁸⁸ ransacked, and that his clothing and jewelry, as well as the clothing and jewelry of Miss Wilson, had been stolen). Re^Compte was requested to come to the Marlboro Post and upon his arrival, between 9:15 and 9:30 p.m., Corporal Ansell drove to Cole’s Amoco Station to which the Ford had been towed. It was there parked in full view, within 40 feet to 50 feet from the front door and brightly lighted.

On this trip, the Corporal unlocked the car and the trunk and removed still additional property — a tape recorder from the trunk and six (6) cancelled checks “from up front.” He explained the purpose of this entry into the car by stating that Trooper Arnold had not removed all the property which was in the car, that he decided “to go back up and get (the remaining property)” and “finish cleaning out” the car in LeCompte’s presence in order to see if any of it belonged to ReCompte. Corporal Ansell further testified that at the Police Post both ReCompte and Kleinbart stated that they had never seen each other before, that ReCompte identified as his the sport coat which Kleinbart was wearing and that Kleinbart had dropped on the floor under the chair in which he was seated a “chain wristwatch” which ReCompte identified as his property. Appellant Kleinbart was then taken before a Justice of the Peace and charged with breaking and entering, his fingerprints were taken and he was incarcerated in default of bail. Mrs. Mullin was arrested the following day, at about 12:30 p.m. at her residence on a warrant charging her also with breaking and entering and was released on bail.

Corporal Ansell identified, over objections by Appellants, as exhibits in the case, the articles which had been turned over to him by Trooper Arnold, as well as articles he removed from the vehicle and testified as well that a large quantity of clothing, comprising twelve (12) pairs of slacks, two (2) sport coats, a gray suit, a woman’s wig and three (3) necklaces, after having been listed, were turned over to LeCompte upon his identification of them. It was stipulated in the trial that there were no search and seizure warrants issued for either entry into the automobile. Objections were also seasonably made by each Appellant to the introduction into evidence of seven (7) exhibits: the en ¹⁸⁹ graved watch, a suitcase containing a jewelry box in which there were ten (10) pairs of cuff links, a checkbook, a separate pair of cuff links, the sport coat (worn by Kleinbart) and the tape recorder and cancelled checks — all of which were identified by LeCompte as his property. Objection to the introduction of the “chain wristwatch” (dropped on the floor under the chair) was sustained since it was not named in the Indictment as being among the property taken from LeCompte’s apartment.

At the close of the evidence offered by the State, each of the Appellants, under Maryland Rule 755(b), made a Motion for Judgment of Acquittal and when their Motions were respectively denied, offered no evidence in defense. As in the lower court, Appellants here contend that the searches of the automobile and the seizure of the personal property therefrom during the entries made, respectively, at about 4:00 p.m. and again at about 9:30 p.m. were unreasonable and unlawful. They urge that the holdings of the United States Supreme Court in Preston v. U. S., 376 U. S. 364 , 84 S. Ct. 881 , 11 L. Ed. 2d 777 (1964) and Henry v. U. S., 361 U. S. 98 , 80 S. Ct. 168 , 4 L. Ed. 2d 134 (1959) compel the conclusion that the searches and seizures, being too remote in time and in place to be treated as incidental to their arrests, were unlawful. Each also contends that under the holdings in Jones v. U. S., 362 U. S. 257 , 80 S. Ct. 725 , 4 L. Ed. 2d 697 (1960) and Banks v. Pepersack, 244 F. Supp. 675 (1965) (U. S. Dist.

Ct., Md.), they, as occupants, each had standing to object to the searches and seizures. Appellee contends that there were no actual searches of the car and no seizure of its contents, but they were merely “taken into protective custody” by the officers; that the property in the car was seized in a legal sense only after the police learned from LeCompte of the breaking and entry of his apartment and the larceny of his goods and after Kleinbart “denied any knowledge of the property” and that at that point the items in the car were contraband and were lawfully subject to seizure. Appellee contends that the case is .controlled by the holdings in Jenkins v. State, 232 Md. 529 , 194 A. 2d 618 (1963) and Knotts v. State, 237 Md. 417 , 207 A. 2d 100 (1965); that the ¹⁹⁰ facts here are not within the holdings in Preston but within the rationale of Cooper v. California, 386 U. S. 58 , 87 S. Ct. 788 , 35 L. W. 4209 (1967). It is further urged that since the Appellants denied any possessory interests in the contents of the vehicle, they have no standing to object. ' The offense of driving a motor vehicle while under the influence of intoxicating liquor or narcotic drugs (Art. 66y2, Sec. 206, supra) is not one of the offenses for which a resident of the State has the right to demand a summons in lieu of being taken into custody for the offense.

See Art. 66y, Sec. 324 (Ann. Code, 1967 Repl. Vol.). For this misdemeanor, committed in Trooper Blazejak’s presence, Appellant Mullin was subject to arrest and as an incident to such arrest, Trooper Blazejak would have been entitled to have made a search of the vehicle which she was operating. Jenkins v. State, supra; Braxton v. State, 234 Md. 1 , 197 A. 2d 841 (1964); Knotts v. State, supra; Shipley v. State, 235 Md. 408 , 201 A. 2d 773 (1964); Edwards v. Warden, 238 Md. 646, 647 , 210 A. 2d 526 (1965), cert. denied, 382 U. S. 896 ; and Crumb v. State, 1 Md. App. 98, 107 , 227 A. 2d 639 (1967).

A “search” as within the ambit of the protection of the Fourth Amendment, implies some exploratory investigation. It is not a search to observe that which is open and patent. Kershaw v. State, 199 Md. 135, 139 , 85 A. 2d 783 (1952) and cases therein cited. It was not a “search” when Trooper Blazejak saw articles of clothing apparently thrown on the rear seat of the vehicle.

He was unable, at the time of the trial, to describe the clothing he had seen; he did not seize it. In Preston v. U. S., supra, petitioners were arrested for vagrancy after they had been found parked for several hours, acting suspiciously, in a business district. After being searched for weapons, they were incarcerated. The car, which had not been searched at the time of the arrests, was driven by an officer to the Police Station and thence towed to a garage.

Later, officers went to the garage and found loaded revolvers in the glove compartment of the car. Being unable to open the trunk, they returned to the station and were directed to go back and enter the trunk through the rear seat of the car. The incrimi ¹⁹¹ nating evidence found in the glove compartment and in the trunk was admitted against them in the trial. The Supreme Court, in unanimously reversing the convictions, said at pgs. 367-8: “The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime — things which might easily happen where the weapon or evidence is on the accused’s person or under his immediate control.

But these justifications are absent where a search is remote in time or place from the arrest. Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest. Agnello v. United States, supra, 269 U. S., at p. 31. Here, we may assume, as the Government urges, that, either because the arrests were valid or because the police had probable cause to think the car stolen, the police had the right to search the car when they first came on the scene.

But this does not decide the question of the reasonableness of a search at a later time and at another place. See Stoner v. California, post, p. 483. 1 The search of the car was not undertaken until petitioner and his companions had been arrested and taken in custody to the police station and the car had been towed to the garage. At this point there was no danger that any of the men arrested could have used any weapons in the car or could have destroyed any evidence of a crime * * * Nor, since the men were under arrest at the police station and the car was in police custody at a garage, was there any danger that the car would be moved out of the locality or jurisdiction. See Carroll v. United States, supra, 267 U. S., at 153.

We think that the search was too remote in time or place to have been made as incidental to the ¹⁹² arrest and conclude, therefore, that the search of the car without a warrant failed to meet the test of reasonableness under the Fourth Amendment, rendering the evidence obtained as a result of the search inadmissible.” Prior to Preston , the Court of Appeals in Brown v. State, 207 Md. 282, 286 , 113 A. 2d 916 (1955), had held that “An officer making an arrest, either with or without a warrant, may-search contemporaneously an automobile connected with the arrest for proscribed property, whether the person arrested is the owner, operator or passenger.” In Knotts v. State, supra, the court, in holding that the Appellant had been lawfully arrested for a misdemeanor committed in the officer’s presence, and the seizure of a shotgun and cap from his automobile as an incident to his arrest was reasonable, stated: “There was no question here of a delayed search such as that involved in Preston v. U. S." In Peal v. State, 232 Md. 329 , 193 A. 2d 53 (1963), an unlocked, unoccupied automobile with open windows was parked on a city street; on its back seat was a large carton labelled as containing ladies’ undergarments. When Peal, ascertained to be the registered owner, came to the vehicle, he was taken into custody and voluntarily admitted to the police that as a truck driver for a transport company, he had taken “left-over” cartons of merchandise, after completing deliveries on his truck route, had placed them in his own vehicle and was selling loose merchandise from the car. After this statement was made, the police returned to the vehicle, without a search warrant, and recovered not only the large carton visible on the rear seat, but a smaller carton under the front seat and two cartons from the trunk — all containing ladies’ undergarments. In finding that there was probable cause for the search of Peal’s automobile and that the search was reasonable, the court said in its opinion, at pg. 333: “Manifestly, the search and seizure were not incident' to- the arrest.

The automobile was at one location, ' the arrest at another. The search was made only after the prisoner was taken to the station house and ques ¹⁹³ tioned, and it stemmed from the confession, not the arrest. Cf. Busby v. United States, 296 F. 2d 328 (9 Cir. 1961).” In Henry v. U. S., supra, the Court found that upon the record presented to it, there was a want of probable cause to believe that a crime had been committed.

Government agents had gotten “certain information” of an undisclosed nature concerning the implication of one of the defendants with interstate shipments, but as the court said: “But as this record stands what those shipments were and the manner in which he was implicated remain unexplained and undefined.” The decision in Henry is remarkably similar to that in Edwardsen v. State, 231 Md. 332, 336-7 , 190 A. 2d 84 (1963), and appears to be inapplicable here. In Cooper v. California, supra, the Supreme Court upheld the warrantless search of a motor vehicle made not incident to an arrest, but a week later, where the petitioner had been arrested for a narcotics violation and his car, impounded by the police, was subject to a statutory forfeiture proceeding because of its use in illegally transporting narcotics. Under California law, in such cases, the police were required to seize the vehicle and hold it as evidence until forfeiture proceedings had been carried to a conclusion. The Court, in holding that Preston was not controlling, said at pgs. 61-2: “* * * Here the officers seized petitioner’s car because they were required to do so by state law.

They seized it because of the crime for which they arrested petitioner. They seized it to impound it and they had to keep it until forfeiture proceedings were concluded. Their subsequent search of the car — whether the State had ‘legal title’ to it or not — was closely related to the reason petitioner was arrested, the reason his car had been impounded, and the reason it was being retained. The forfeiture of petitioner’s car did not take place until over four months after it was lawfully seized.

It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of ¹⁹⁴ time, had no right, even for their own protection to search it. It is no answer to say that the police could have obtained a search warrant, for ‘[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.’ United States v. Robinowitz, 339 U. S. 56, 66 . Under the circumstances of this case, we cannot hold unreasonable under the Fourth Amendment the examination or search of a car validly held by officers for use as evidence in a forfeiture proceeding.” The rationale in Cooper is not here applicable since the contents of the automobile was not contraband and since the car was not required to be seized by any state law, nor was it subject to forfeiture. Unlike the facts in Peal, supra, at the time Corporal Ansell entered the locked vehicle at the service station, at about 9:30 p.m., neither of the Appellants was under arrest in connection with the breaking and entry of LeCompte’s apartment, nor had either of them made any confession or incriminating admissions.

When, at that time he entered the car “to finish cleaning it out” and for the purpose of seeing if any of the remaining property in the car belonged to LeCompte, under the holdings in Preston v. U. S., supra, there was an unreasonable and unlawful search of the vehicle and the removal of the tape recorder from its trunk and the six (6) cancelled checks “from up front” constituted an unreasonable and unlawful seizure of those items. Such search and seizure cannot be considered — remote as it was in time and place — as an incident to Appellants’ arrests. At that point there was no danger — indeed no opportunity — that either of them could have used any weapons in the car or could have destroyed any evidence therein. Kleinbart, having returned from the hospital, was then at the Police Post, uncharged with any crime, and Mullin had been then apparently released on bail.

The next question before us is whether, under the facts shown in the record of this case, the removal by Trooper Arnold of the property within the car and the trunk for the avowed purpose “to protect the property” constituted an unreasonable search and seizure in violation of the Fourth Amendment. ¹⁹⁵ In Jenkins v. State, 232 Md. 529 , 194 A. 2d 618 (1963), two unidentified persons reported to the police that a man in a 1950' green Chevrolet was acting “in a peculiar manner on Manhatten Beach Road.” While one oí the officers stopped to check for a car of the given description, the other officer proceeded about one-half mile and observed a vehicle of that description approaching him. Turning around, he began to follow the car and instructed the other officer to “flag it down.” The car failed to stop; the officer was forced to jump out of its path; a chase began both north and south on the Ritchie Highway. As one police car drew abreast of the pursued vehicle, to attempt to force it to a halt, the driver of the errant car collided with the police vehicle. As the chase continued, the pursued vehicle turned over as it made a turn into Old Annapolis Road.

As a result of the accident, whiskey, cigarettes, cigars, knives, confections and a quantity of coins of various denominations spilled out of the overturned vehicle on the ground in plain view of the officers. They took custody of the car and the scattered items; the car was towed to a nearby service station while the recovered property was taken to the Police Station. Less than an hour later, the police received a report that a tavern, about one-quarter mile from where the Chevrolet was first encountered, had been broken into. Although the court found that no objection had been made to the admissibility of the evidence at the trial, that nonetheless the evidence was admissible, stating at pg. 533: “Unlike the usual cases dealing with searches and seizures which come to us, there was here no actual search.

As noted previously, the conglomerate material in the Chevrolet at the time it overturned and appellant was arrested was taken into protective custody by the officers. At that time they were not aware of the breaking and entry which had occurred at Larry’s Tavern and only after subsequently learning of this did they seize the material in a legal sense.” See also, Rucker v. State, 196 Md. 334 , 76 A. 2d 572 (1950), where lottery slips were found scattered about an automobile which had overturned and additional slips fell out onto the ¹⁹⁶ road when the car was righted by officers who were investigating the accident. It is apparent that the facts in Jenkins and in Rucker are not similar to those we here have; the vehicle driven by Appellant Mullin was not in any collision, nor was its con-dents spilled upon the highway. In fact, at the time Trooper Arnold removed the property from it, it was safely parked in ■the filling station of the police-designated bailee.

In St. Clair v. State, 1 Md. App. 605 , 232 A. 2d 565 , Judge Macgill, for the Court, in a learned opinion made an extensive ■review and analysis of the decisions throughout the country pertaining to “protective custody” of articles by the police from ■ automobiles. In that case, a Virginia State Trooper observed St. Clair • asleep in his automobile on a State highway near Salem, Virginia, with two (2) television sets in open view on the floor •of the vehicle. Appellant told the Trooper that he was enroute from California to look for work in Virginia and Maryland, had arrived late at night and did not want to awaken relatives with whom he intended to stay and who lived nearby. The 'Trooper knew the named relatives and knew that they lived in the immediate area.

Before departing from the scene, the 'Trooper, in “checking out” the registration of the vehicle, learned by radio that St. Clair was wanted by California authori'ties for “violation of parole and burglary.” Being informed by the ' Trooper that he would be taken into custody, he requested permission to remove an article of clothing from the trunk and the Trooper then noticed a number of articles therein, all of which he believed to be owned by Appellant. St. Clair told the Trooper that one of the car doors would not lock, that he had “some stuff in the car he didn’t want anybody to take,” he delivered the keys of the car to the Trooper with the request that they be delivered to his brother-in-law, so that the car could be ■ driven to his nearby residence. St. Clair was driven by the