Plitko v. State

Murphy, C.J., delivered the opinion of the Court. Appellant Plitko was convicted at a court trial of carrying a shotgun in his motor vehicle, having a barrel less than twelve inches in length, in violation of a Baltimore City Ordinance. 1 He contends on appeal, as he did below, that the gun was unlawfully seized by police from the trunk of his car in violation of his Fourth Amendment ³⁷ right to be secure against unreasonable searches and seizures. 2 The evidence adduced at trial showed that on Sunday morning, June 1, 1969, at 2:40 a.m., Officer Clifford Wendricks had his attention called to two “loud” cars parked on a public street in Baltimore. Behind the wheel of one of the vehicles was appellant; with him were two men and two women. The other vehicle contained four male occupants.

All of them appeared to be drinking beer in violation of a Baltimore City Ordinance making it a misdemeanor to consume alcoholic beverages in a motor vehicle parked on a public street. 3 Officer Wendricks arrested all nine persons for violation of this ordinance. He ordered them out of the vehicles and “patted down” the male arrestees. Appellant was asked for, and produced, his vehicle registration card. Other officers, together with a paddy wagon, arrived on the scene in response to Wendricks’s call for assistance.

The interiors of both cars were searched. Several cases of beer were observed, together with a fifth of liquor and some wine. The trunk of appellant’s vehicle was opened and searched; the incriminating shotgun was found therein, together with some shotgun shells and hunting clothing. After the searches were concluded, appellant and his companions were taken to the police station in the paddy wagon.

Appellant’s car was thereafter removed to an impounding lot by tow truck. Officer Wendricks testified that he called the tow truck because appellant had been arrested, his car was illegally parked in a no parking zone, and “the ignition key was in the ignition and you couldn’t get it out.” Wendricks explained that “police policy and procedure” required him “to check the car and the trunk for valuables that are ³⁸ left in the car”; that he was required to take the valuables into custody “so they don’t go to the impound lot where it has been known that things become missing.” Officer Gary Lembach, another of the arresting officers, testified that it was necessary to tow appellant’s, vehicle away because “we couldn’t get the key out of the ignition and we certainly couldn’t leave it there and be responsible for the automobile and the property contained therein.” Under these circumstances, Lembach thought it necessary to search the vehicle and “itemize” the contents. It is undisputed that the ignition key was stuck in the ignition and could not be removed; indeed, appellant so testified. The record also shows that the trunk key was removed from the key ring which contained the stuck ignition key; by this means the trunk was entered.

The lower court found that the arrest was lawful because the officer had probable cause to believe that appellant was committing, in his presence, the misdemeanor of unlawfully consuming alcoholic beverages on a public street. 4 The court concluded, however, that the search of the trunk was neither incident to appellant’s arrest, nor based upon probable cause to believe that the vehicle contained articles that the police were entitled to seize. 5 Instead, the court held the seizure of the shotgun lawful on the ground that it was reasonable in the circumstances for the police to inventory the vehicle’s contents in order to protect and safeguard the owner’s property. It has been held that the making of an inventory of the contents of a