Mullins v. State

Moylan, J., delivered the opinion of the Court. The appellant, Vernon Andrew Mullins, was convicted by a Cecil County jury, presided over by Judge J. Albert Roney, Jr., of receiving stolen truck tires. We need concern ourselves only with his contention that the stolen truck tires were the fruit of an unconstitutional search and seizure and should have been excluded from evidence. The appellant was arrested warrantlessly on October 22, 1975.

The stolen truck tires were recovered from the van in which the appellant had been riding. The appellant timely sought and received a pretrial hearing on his motion to suppress the evidence. He asserts error in the denial of that motion. It is undisputed that the van in which the tires were found was searched warrantlessly.

It is undisputed that the search of the van after its two passengers had been removed from it, after it had been locked, and after it was subsequently towed to a police garage cannot be justified upon any theory of warrantless search incident to lawful arrest under Chimel v. California, 395 U. S. 752 , 89 S. Ct. 2034 , 23 L.Ed.2d 685 (1969). It is clear to us, upon our own independent, reflective, constitutional judgment that the warrantless search cannot be justified under the Carroll Doctrine because of the absence of probable cause to believe that the van contained evidence of crime. Carroll v. United States, 267 U. S. 132 , 45 S. Ct. 280 , 69 L. Ed. 543 (1925). The hearing judge rested his ruling essentially upon his finding that the police were conducting a routine inventory of the ⁶⁰⁷ van’s contents after having lawfully taken it into their caretaking custody.

South Dakota v. Opperman, 428 U. S. 364 , 96 S. Ct. 3092 , 49 L.Ed.2d 1000 (1976). It is unnecessary for us to address the troublesome question, on the facts of this case, of whether the police were not bent upon a criminal investigation rather than upon an innocuous and non-criminally oriented listing of chattels, because the State cannot surmount its initial hurdle of showing that it lawfully took control of the vehicle in the first instance. The van was stopped on a small side road just off a State highway in Cecil County. It was occupied by the appellant, as a passenger, and by the driver, Charles Edward Tackett.

Mr. Tackett was the nephew of the appellant. Mr. Tackett was also a duly authorized driver in lawful possession of the van. The indispensable predicate for the taking of the van into caretaking custody by the police was the incapacity of either the appellant or Mr. Tackett lawfully to take the van and go upon his way. With no other incapacities remotely applicable, the only incapacity here pertinent would be the lawful arrest of both of those persons whose rightful and appropriate custody would have prevailed over that of the police.

The primary police focus was upon the appellant and not upon Mr. Tackett. Mr. Tackett’s only arguable guilt of any sort arose out of his association with the appellant. The appellant, in turn, was not wanted for any crime perpetrated against the laws of this sovereignty. The police theory for their warrantless arrest of the appellant is that he was a known fugitive from Delaware justice.

The predicate for that theory was exceedingly skimpy. Most of the evidence proffered by the State at the suppression hearing has to be factored out because of its after-the-fact character. The State boldly asserted that it arrested the appellant on a fugitive warrant issued by the District Court of Maryland based upon a Delaware warrant, but it developed that that warrant was issued subsequent to the warrantless arrest upon the highway. At another point, the State referred to “roughly 30 plus counts of felonies involving auto theft or ⁶⁰⁸ related counts,” but it developed that these warrants “were sent out under date of October 29, 1975,” seven days after the warrantless arrest.

When all of the after-the-fact information was factored out, the Maryland intelligence of the appellant’s Delaware transgressions boiled down to a single item of information: “Q. I believe one warrant was, and correct me if I am wrong, one warrant was issued on the 12th of November 1974 for auto theft, is that correct? A. That is the first warrant, yes.” We are left with the single fact that a Delaware warrant was issued for the crime of auto theft eleven months before the appellant was arrested warrantlessly by Maryland police. There is no indication that Delaware had ever declared the appellant to be a fugitive or sought his return as one who had fled that jurisdiction. There is no indication that the provisions of the Federal Fugitive Felon Act were ever invoked.

Indeed, there is no indication that the November, 1974, auto theft was even a felony. We notice judicially 11 Delaware Code § 841, which makes the theft of goods worth $100 or more a felony but the theft of goods of the value of less than $100 a misdemeanor. In any event, the Maryland police appear to have been without authority to arrest the