Nair v. State

Mason, J., delivered the opinion of the Court. David Gordon Nair and Frank Edward Nair, appellants, were tried jointly in the Circuit Court for Allegany County of store house breaking and larceny. They were found guilty on both counts and sentenced to terms of five and ten years imprisonment respectively. On appeal appellants present the following two questions: 1.

Did the lower court err in admitting certain allegedly stolen firearms because they were seized as a result of an illegal search and seizure? 2. Did the lower court err in not ordering separate trials for the appellants, as Frank Edward Nair was tried by a jury, whereas David Gordon Nair was tried by the Court? According to the evidence adduced at trial, on 15 June 1980 Robert White, a private citizen, contacted Sergeant McGowan of the Maryland State Police and told him he had an offer to purchase several weapons and inquired if the police had any information regarding the theft of some shotguns. Sergeant McGowan informed White that he did not have a report of such a theft, but advised him to purchase the weapons and to call him back.

Thereafter, Sergeant McGowan made a further search of his records and found that a store in Frostburg had been burglarized on 13 June 1980 and several weapons had been stolen. Later that evening White brought two Remington shotguns to the police barracks. The serial numbers on the guns matched those of the guns stolen from the store in Frostburg. White informed Sergeant McGowan that he had purchased the guns from the Nair brothers, Terry, Frank and David.

He gave the sergeant a physical description of the brothers and the tag number and description of the car they were driving. White also told McGowan that the Nair brothers had offered to sell him more weapons. ²³⁶ On 17‘June 1980 at approximately 2:00 p.m. White told Sergeant McGowan that he had arranged to purchase additional weapons from the Nair brothers and was supposed to meet them between 5:00 and 6:00 p.m., at Bucks Hotel. The sergeant staked out the area and at 5:00 p.m., he stopped the previously described vehicle which was being operated by David Nair with Frank Nair as a passenger.

Both appellants were arrested and removed to a police vehicle where they were handcuffed and advised of their Miranda rights. According to Sergeant McGowan he requested and was granted permission by David Nair, in whose name the car was listed, to search the car. Pursuant to information previously given him by Robert White, McGowan went to the back of the vehicle, pulled up the trunk mat and observed three or four weapons concealed under the mat. Upon returning to the vehicle police Trooper Wilson told him that David Nair said he did not want him to search any further.

No further search was conducted at the scene. The vehicle was taken to the Cumberland Barracks where it was searched and four guns were seized. I. Appellants argue that "because Sergeant McGowan had ample time and probable cause to obtain a search warrant for appellant’s car before the appointed time of the sale of the shotguns, there were no exigent circumstances justifying the warrantless search in this case.” We do not agree. In order to justify the warrantless search of appellant’s automobile under the so-called automobile exception, Carroll v. United States, 267 U.S. 132 (1925) probable cause and exigent circumstances must be established.

Soles v. State, 16 Md. App. 659 (1973). In the present case appellants concede that there was probable cause but argue that there were no exigent circumstances because Sergeant McGowan had ample opportunity to obtain a warrant. Although arguably the police may have had sufficient information to obtain a warrant after Robert White purchased two stolen weapons from appellants on 15 June 1980, the police were under no ²³⁷ obligation to conclude their investigation or arrest appellants at that time. See Cardwell v. United States, 47 U.S. 583, 595 (1974) where the Court said: "Assuming that probable cause previously existed, we know of no case or principle that suggests that the right to search on probable cause and the reasonableness of seizing the car under exigent circumstances are foreclosed if a warrant was not obtained at the first practical moment.” In the present case the police were notified on 17 June 1980 at 2:00 p.m., that a sale of weapons would take place at 5:00 p.m.

Inasmuch