Peterson v. State

Moylan, J., delivered the opinion of the Court. A large number of complaints regarding narcotics violations in the 5700 block of Sheriff Road in the Fairmont Heights section of Prince George’s County led the Narcotics Section of the Vice Control Unit of that county’s police department to conduct on Thursday, April 6, 1971, a discreet, ten-hour surveillance of the parking lot adjacent to Jack’s Liquors at 5701 Sheriff Road. As a direct result of that surveillance, six individuals were arrested on the parking lot at approximately 3:30 that afternoon and the two automobiles in which those six individuals had been sitting were searched. All six individuals were charged in two counts of a single indictment, alleging respectively (1) the possession of heroin with an intent to sell and (2) the possession of heroin.

The two owners of the automobiles were additionally charged under a third count with maintaining the automobiles as common nuisances. Charges against one of the six defendants, Joseph Henry Williams, were stetted. A second of the six defendants, Shandy Junior Richardson, was permitted to enter a plea of guilty to the charge of simple possession. The other four defendants were jointly tried in the Circuit Court for Prince George’s County and were all convicted of possession with intent to sell.

The appellants Wilson Theodore Peterson and Daniel Harvey Deal along with Artemus Logan, who has not appealed, 1 were tried by Judge Robert B. Mathias, sitting without a jury. The appellant Paul Edward Hunt was tried simultaneously by a jury, with Judge Mathias, of course, presiding. The three appellants, Peterson, Deal and Hunt, have filed separate briefs and their contentions vary to some extent. Because of the large overlap in their positions, how ⁴⁸² ever, they will be considered together in this single opinion.

A common contention of all three appellants, and the most significant of the seven raised, is that the searches and the subsequent seizures of the contraband heroin were unconstitutional. The probable cause which served as the predicate for the six warrantless arrests and which also served, under one of two alternate theories, as the predicate for the warrantless search of one of the two automobiles accumulated in the mind of the police-surveillant, Detective 1st Class Elmer L. Snow. Since the adequacy vel non of that probable cause will be measured from that vantage point, a word is in order about the professional experience and expertise which Detective Snow was able to bring to bear upon the otherwise raw data of visual observation. Detective Snow had been a member of the Prince George’s County Police Department for approximately six and one-half years.

He had been assigned to the Vice Squad, working primarily in the Narcotics Section thereof, for approximately three years. His duties included the active investigation of narcotics complaints, the supervising of undercover police officers, and the playing of undercover roles himself. At the time of trial, he was Acting Commander of the Narcotics Section. He testified that while at the Police Academy in 1965, he received approximately 24 hours of classroom training in the identification of drugs and drug abusers.

While at the Academy, he worked undercover on a narcotics investigation. He attended the training school conducted by the Bureau of Narcotics and Dangerous Drugs of the United States Department of Justice, and was graduated at the top of his class. At the time of this investigation, he had investigated “well over 100 narcotics complaints.” He had testified in “at least 75 cases.” He testified that he had seen the type of aluminum foil packet involved in this case on “probably several hundred occasions.” We gauge the significance of the visual observations in the case at bar from the standpoint of those trained eyes. ⁴⁸³ Taylor v. State, 9 Md. App. 402, 407 ; Johnson v. State, 8 Md. App. 187, 191-192 . In order to observe possible violations of the narcotics laws, Detective Snow, along with Detective Flaherty (both in civilian clothing), established a clandestine observation post in the bathroom of Jack’s Liquors.

It was apparently closed off to the public. Peering through Venetian blinds, they could observe and photograph any activity on the adjacent parking lot, immediately below them. They were at a second-story level. They entered their observation post at 5:30 a.m.

Detective Snow explained that he wanted them to arrive on station before anyone would be on the street to see them for fear that they, white men, might arouse suspicions in a predominantly Negro neighborhood. The first pertinent observation was at 9:30 a.m. The appellant Peterson drove up in a 1964 white Pontiac. Peterson backed the Pontiac up against the building, immediately below the surveillants.

They were in a position to see the top and the left (driver’s) side of the Pontiac. At that time, Peterson was alone in the car. Between 9:30 a.m. and 11:00 a.m., when Peterson was alone in the Pontiac, approximately eleven persons were observed to approach the car. They were all photographed.

The first, one Stanley Ernest Henson, approached the driver’s side of the automobile and conversed briefly with Peterson. Detective Snow testified that Henson was known to him as a heroin addict. On a second occasion, an unknown female approached the operator’s side of the Pontiac, handed United States currency to Peterson, and received in return an aluminum foil packet. On another occasion, the appellant Deal was observed standing beside the car conversing with Peterson.

At a later time, two additional persons approached Peterson. One handed him a jacket, which Peterson tried on. Peterson placed the jacket in the Pontiac and delivered an aluminum foil packet in return. On yet another occasion, two other persons approached the car and exchanged money for an aluminum foil packet.

Shortly ⁴⁸⁴ before 11:00 a.m., four persons drove up in a vehicle, alighted, and approached Peterson. There again was an exchange of money for an aluminum foil packet, and the four persons ran back to the vehicle in which they had arrived and departed. At approximately 11:00 a.m., Peterson drove the Pontiac away from the parking lot. Peterson and the Pontiac returned at 11:15 a.m. and parked in the same place.

At that point, Deal got into the car, sitting in the right front seat, where he remained for the rest of the period of observation. The transactions from the Pontiac continued unabated. Throughout the day, Detective Snow observed approximately fifteen persons approach Peterson on the driver’s side of the automobile and exchange currency for aluminum foil packets. He further testified that between six and eight persons approached the passenger side of the automobile and engaged in similar exchanges with Deal.

The observation of the passenger side of the Pontiac being slightly more obscured, Detective Snow could testify only to seeing the apparent purchasers count out currency and extend it to the interior of the automobile. He could then observe them withdraw their hands, place them inside their pockets, and walk away from the vehicle. At one point, apparently at approximately 2:00 p.m., while an unknown female was exchanging currency for an aluminum foil packet on the passenger side of the automobile, the co-defendant Logan (who reappears later that afternoon as the driver of the second automobile) was standing there at the passenger side, where he remained for approximately five minutes. At approximately 1:00 p.m. that afternoon, the appellant Hunt and the co-defendant Williams got in the back seat of the car.

They remained in the automobile from then until the arrests at 3:30 p.m., except that Hunt was absent for one approximately thirty-minute period between 2:00 p.m. and 2:30 p.m. While Hunt was in the Pontiac, somewhere between four and seven similar exchanges were transacted with both Peterson and Deal. At one point, Detective Snow observed the appellant Hunt, in the back seat, inserting a needle into his arm. ⁴⁸⁵ Detective Snow testified that, on the basis of his professional expertise, he believed the aluminum foil packets to contain heroin and he believed the transactions he had observed to be sales of heroin. At approximately 3:30 p.m., he put through a telephone call to Detective Gerald Howard notifying him to move in with his squad for purposes of making arrests.

Shortly after that call was placed, Detective Snow observed a red and white Oldsmobile driven by the previously observed co-defendant Logan pull up and park beside the Peterson Pontiac, approximately two feet away from it. He observed Logan get out of his vehicle, walk over to the passenger side of the Pontiac occupied by Deal, and return to his own vehicle a few minutes thereafter. A supplemental dispatch alerted Detective Howard and his men to move in on the second vehicle as well. That second vehicle was also occupied by the co-defendant Richardson.

While the arrests and searches were being executed, Detectives Snow and Flaherty remained in hiding. It was their hope that if the existence of their hidden observation post were not compromised, it could be resorted to by them for future surveillances. As the arresting party approached the two vehicles, Detective Richard Beavers observed Logan pushing a black purse through the left front window vent of the Oldsmobile. It dropped to the ground.

A few minutes later, Detective Beavers recovered it from its resting place on the pavement. As abandoned property lying out in a constitutionally “non-protected area,” its seizure gives us no further concern. It was clearly constitutional. Hester v. United States, 265 U. S. 57 ; Brown v. Maryland, 15 Md. App. 584 .

The purse was divided into two compartments. One of them contained six aluminum foil packets containing approximately “half a spoon” each of heroin. The other compartment contained 85 aluminum foil packets, which were characterized as “decks” of heroin. The “half spoon” size is recognized in the narcotics traffic as a quantitatively larger standard consumer unit than the “deck.” ⁴⁸⁶ As the arresting party approached the Pontiac, a flurry of activity was noticed.

Deal was observed to turn to his left and engage in some sort of manipulative activity below the windshield level. Peterson was observed to be reaching downward. All four occupants of the Pontiac were ordered out of the car. They placed their hands up against the car and were searched.

Contemporaneously, Detective Beavers looked into the Pontiac and picked up from the floor, immediately in front of the driver’s seat, a black purse similar in appearance to the one jettisoned from the Logan automobile. It also contained two compartments. As in the case of the Logan purse, one compartment contained “half spoon”-sized aluminum foil packets of heroin, and the other compartment contained 54 “decks” of heroin. It was this seizure that all three appellants claim was unconstitutional.

Significantly, none of them argues that Detective Snow (1) lacked probable cause to believe that each of them in his presence had been and still was committing the misdemeanor of possessing heroin; (2) lacked probable cause to believe that each of them in his presence had been and still was committing the felony of possessing heroin with intent to sell; or (8) lacked probable cause to believe that the white 1964 Pontiac ■ they were occupying contained contraband heroin. Any such argument would have been utterly without foundation. From his trained viewpoint, there was no other reasonable explanation for the presence of the automobile upon that parking lot under those circumstances throughout the entirety of that day than as a mobile distribution point for the sale of narcotic drugs. There was no other reasonable explanation for the aluminum foil packets than that they were “decks” and “half spoons” of heroin exchanged generally for currency and occasionally for articles of clothing.

There was no other reasonable explanation for the needle in Hunt’s arm, under those circumstances, than the injection of a narcotic drug. Snow clearly possessed an amplitude of probable cause focusing upon the Pontiac and all of its occupants. ⁴⁸⁷ The appellants place rather an ill-advised reliance upon Whitely v. Warden of Wyoming Penitentiary, 401 U. S. 560 (1971). In Whiteley, as in the case at bar, an electronically transmitted message signalled the officers to move in for the arrests. There it was a radio bulletin.

Here it was a telephone call from Detective Snow to Detective Howard. Beyond that common use of modern communications technology, however, the analogy is totally inapt. Whiteley stands for the broad principle that a police officer, with proper justification for an arrest or a search (with or without a warrant), may multiply his available arms and legs to execute his purpose by calling upon other policemen to aid him. By modern electronics, he may call upon those beyond the sound of his voice as well as upon those within his hearing.

He does not have to impart to each of his executing agents the building blocks of probable cause that mounted up to his justification. The immediate holding of Whiteley was that, just as a justification for police action is not diminished in transmission, neither is it enhanced. If the justification is adequate at the point where the message is transmitted, it is no less so at the point where the message is received. Conversely, if the justification is inadequate at the point where the message is transmitted, that inadequacy endures and will not somehow be dissipated on the wires or on the airwaves.

In transmission nothing is lost and nothing is gained. Whiteley held, at 568: “We do not, of course, question that the Laramie police were entitled to act on the strength of the radio bulletin. Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the ⁴⁸⁸ instigating officer to rely on fellow officers to make the arrest.” The instigating officers for the radio bulletin in Whiteley relied upon a signed arrest warrant which was inadequate on its face.

The mere broadcast of its existence could not cure or obscure its fatal defect. The instigating officer for the telephone message in the case at bar relied upon the probable cause in his own mind. There was neither defect nor inadequacy therein. In each case, when the directive to execute an arrest or a search is traced back to its point of first transmittal, the justification at that point of origin must be analyzed and found to be sound.

In Whiteley, it was not sound; in this case, it was. Beyond that ill-placed reliance upon Whiteley, the appellants attempt to classify Detective Snow as just another confidential informant and to invoke the “basis of knowledge” requirement of Aguilar v. Texas, 378 U. S. 108 (1964), for his telephoned information, thereby branding it as “conclusory.” The reasoning is far-fetched and ignores the clearly articulated decisions of the Court of Appeals and of this Court that probable cause will be measured in terms of the collective information within the possession of the entire police team. The Court of Appeals in Farrow v. State, 233 Md. 526 , in dealing with a bi-county police relationship far more attenuated than the one at bar, held, at 531-532: “When Sergeant Rawlings, after interviewing defendant’s wife, thereafter broadcast the description of the defendant and his automobile and advised that he was wanted by the Baltimore City police for rape and other crimes, we think it is clear that he had probable cause to do so. The officers in Anne Arundel County who made the arrest knew nothing about the probable cause but they had received a ‘look out’ for the defendant from a responsible source and we think that is sufficient.

If the police team working on the particular case had accumulated suf ⁴⁸⁹ ficient information to furnish probable cause for a reasonable man to believe that the alleged crime had been committed and that there was probable cause to believe that the defendant was involved therein, there was sufficient cause for his arrest.” See also Bolesta v. State, 9 Md. App. 408, 415 ; and Hebron v. State, 18 Md. App. 134, 146-147 (and cases cited therein). In the case at bar, Detective Snow was a part of the “police team.” His knowledge was attributable to the whole team. With the probable cause of one therefore inuring to all, the search for and the seizure of the black purse from the white Pontiac is constitutionally sound upon either of two independent rationales. Detective Beavers’ search of the automobile was a legitimate incident of the lawful arrests of its occupants.

Chimel v. California, 395 U. S. 752 (1969), makes clear that a “search incident” extends not simply to the person of the arrestee but also to the surrounding area within “his immediate control” — the fair “extension of his person” — the area within his reasonable grasp or reach within which he might grab or lunge for a weapon or within which he might be able to destroy evidence. Where four arrestees are ordered from a vehicle and are braced against it for a search, where two others are being arrested several feet away, and where the doors of the vehicle are still open, the contemporaneous survey by Detective Beavers of the interior of that automobile is, we hold, within the legitimate search perimeter of these particular lawful arrests. This is particularly so with evidence as readily destructible as heroin. The search here followed the arrests instantaneously and was of the very spot where Peterson was sitting at the moment of his arrest and was within several feet of where he was standing at the moment of the search.

The seizure here was the product of a legitimate “search incident.” The appellants advance a further argument that since ⁴⁹⁰ the police had the time and opportunity to obtain a search warrant and arrest warrants, the warrantless arrests and warrantless searches were constitutionally prohibited. The constitutional principle they assert is simply inapplicable to arrest and to “search incident” situations. The most libertarian decision ever to interpret the Fourth Amendment, Trupiano v. United States, 334 U. S. 699 (1948), disavowed, the extreme approach which the appellants here espouse as to warrantless arrests. The Supreme Court there said, at 705: “The absence of a warrant of arrest, even though there was sufficient time to obtain one, does not destroy the validity of an arrest under these circumstances.

Warrants of arrest are designed to meet the dangers of unlimited and unreasonable arrests of persons who are not at the moment committing any crime. Those dangers, obviously, are not present where a felony plainly occurs before the eyes of an officer of the law at a place where he is lawfully present. Common sense then dictates that an arrest in that situation is valid despite the failure to obtain a warrant of arrest.” The arrests here are, therefore, valid, notwithstanding an arguable opportunity to obtain arrest warrants. Trupiano did, to be sure, condemn a “search incident” to an arrest where there had been prior opportunity to obtain a search warrant and where the evidence uncovered in such “search incident” was not inadvertent.

Trupiano , however, was overruled by United States v. Rabinowitz, 339 U. S. 56 (1950). Although a part of Trupiano’s rationale, not here pertinent, was reinstated by Chimel, Coolidge v. New Hampshire, 403 U. S. 443 (1971), makes clear that this “inadvertence” or “search-warrant-when-feasible” requirement was not reinstated with respect to a “search incident to lawful arrest” and that no such requirement exists. Coolidge, at 482. We, by no means, accept the factual conclusion advanced by ⁴⁹¹ the appellants here that there was a feasible opportunity to obtain a search warrant or arrest warrants, but the point is moot in view of the nonexistence of such a constitutional requirement, in any event.

Completely independent of the “search incident” rationale, the search of the Pontiac here was constitutional, we hold, under the so-called “automobile exception” to the warrant requirement. Carroll v. United States, 267 U. S. 132 (1925). The first of the two necessary preconditions — the existence of probable cause to believe that the automobile contained contraband or other evidence of crime — has already been broadly discussed hereinbefore. We hold that the second necessary precondition— the existence of exigent circumstances — was also present.

The automobile was upon a parking lot open to the public. Four persons were arrested from that automobile immediately prior to its search. It was mobile. Even with its occupants moving into custody, it was vulnerable in its position to confederates in the well-organized underworld of the narcotics traffic.

Its suspected contents were readily destructible. In that bustling marketplace of narcotics users, it was further an inviting target for theft by any tempted or opportunistic “junkie.” The exigency in the situation at bar was at least as strong as that in Carroll, supra; in