Ruffin v. State

MOYLAN, Judge. The interesting aspect of this case is the opportunity to observe the fundamentally different natures of the contrasting issues of Fourth Amendment applicability and Fourth Amendment satisfaction. The former is concerned solely with the coverage of the Fourth Amendment; the latter, with the merits of Fourth Amendment reasonableness. The former involves the very threshold of the entitlement to litigate; the latter involves the actual merits of that ⁹⁵ litigation.

What the searching policeman reasonably believes or reasonably does is immaterial to Fourth Amendment applicability; it is crucial to Fourth Amendment satisfaction. The appellant, Kenneth T. Ruffin, was convicted in the Circuit Court for Montgomery County by Judge DeLawrence Beard, sitting without a jury, of 1) transporting a handgun in a vehicle, 2) possession of a handgun having an altered identification number, 3) possession of heroin with intent to distribute, 4) possession of a motor vehicle with defaced serial numbers, and 5) displaying license plates issued to another vehicle. Upon this appeal, he raises the following three contentions: 1. That Judge William M. Cave, presiding at a pre-trial suppression hearing, erroneously ruled that the appelt had no standing to contest the search of a stolen autoi bile; 2.

That the search of the automobile, for a variety of reasons, was unreasonable and, therefore, unconstitutional; and 3. That the evidence was not legally sufficient to support the conviction for transporting a handgun in a vehicle. Our disposition of the appellant’s first contention ipso facto resolves the second as well. At approximately 5:30 a.m. on July 3, 1986, an officer on routine patrol in the 8200 block of Georgia Avenue observed a suspicious-looking individual (not the appellant) entering a Volvo automobile parked in front of a pool hall.

The officer stopped the individual and began inspecting the interior of the Volvo. At that point, the appellant came out of the pool hall and demanded to know what the officer was doing in his car. The subsequent search of that car yielded the physical evidence that was indispensable to proof of all counts on which the appellant was indicted. The appellant timely moved to exclude the physical evidence on the grounds that the automobile search was unreasonable under the Fourth Amendment.

At the suppression hearing before Judge ⁹⁶ William M. Cave, the State challenged the appellant to show standing: “In this case the State is not going to concede that Mr. Ruffin had an expectation of privacy in the car from which the heroin and the handgun were seized. The car was a stolen vehicle, and the State is going to ask him to prove that he had an expectation of privacy.” When a timely challenge to standing is raised, the procedure for litigating that challenge is clear. As we explained in Thompson v. State, 62 Md.App. 190, 202-203 , 488 A.2d 995 (1985), cert. denied, 303 Md. 471 , 494 A.2d 939 (1986): “[I]t is clear that there is an initial burden on the prosecution to raise the challenge to standing. If the State fails to raise a timely challenge and the court goes on to reach the Fourth Amendment merits, the State will be estopped from raising the challenge at a later stage.

If the prosecution does raise the challenge, however, by even the most informal of oral pleadings, it is then clear that the burden of proof is allocated to the defendant to show his standing. The State has no obligation to show nonstanding.” At the suppression hearing, it was indisputably established that the Volvo that was searched was a stolen car. The appellant himself does not take serious issue with this. The Volvo belonged to Arne Drud of Arlington, Virginia.

The car was stolen from Mr. Drud approximately one month before it was found in the possession of the appellant. It was, moreover, immediately apparent that the ear was probably stolen. When the police first saw the car, they observed that the ignition cylinder was not secured. One serial plate that should have been riveted into place was simply hanging loose in place, with its four corners having been snipped.

Yet a second serial number under the hood had had its rivets snipped off and was simply screwed into place. A third “secret serial number” had been drilled out and was gone completely. The license tags on the car were not the tags that had been issued to it but were tags that had been issued for a different, 1975 Volvo owned by the ⁹⁷ appellant and transferred by the appellant to the stolen car. The serial numbers that were loosely attached to the stolen Volvo did not belong to it but had been transferred there from the appellant’s 1975 Volvo.

Judge Cave’s findings of fact in this regard were abundantly supported by the evidence and were, therefore, not clearly erroneous: “[T]he court finds sufficient facts that it wasn’t even his car. It was a stolen car, and he has absolutely no right or expectation of privacy. He may expect it, but the constitution says that he is not entitled to have an expectation to privacy in a stolen car. For all these reasons, but primarily the latter, I suppose, the motion to suppress will be denied.” 1 ⁹⁸ The appellant does not, and could not, take issue with the clear proposition of law that a thief has no standing to object to the search of a stolen automobile.

We first considered this issue in Palmer v. State, 14 Md.App. 159 , 286 A.2d 572 (1972), and held unequivocally, at 14 Md.App. 169 , 286 A.2d 572 : “Both the overwhelming weight of authority and, we feel, the better reasoning are represented by the cases which hold squarely that the thief has no ‘standing’ in the stolen automobile. Kaufman v. United States, 323 F.Supp. 623 (E.D. Missouri 1971); Williams v. United States, 323 F.2d 90 (10th Cir.1963); State v. Pokini [ 45 Haw. 295 ] 367 P.2d 499 (Hawaii, 1961); Slyter v. State [ 246 Miss. 402 ], 149 So.2d 489 (Mississippi, 1963); Harper v. State [ 84 Nev. 233 ], 440 P.2d 893 (Nevada 1968); State v. Edmonds, 462 S.W.2d 782 (Missouri 1971); Meade v. Cox, 310 F.Supp. 233 (W.D.Virginia 1970). Even more compelling than the precedents from our sister jurisdictions, however, is the inherent logic of the proposition. No valuable social purpose could conceivably be served by extending the protection of the Fourth Amendment to a thief in the enjoyment of the stolen automobile.” (Footnote omitted).

Judge Wilner addressed the same issue in Graham v. State, 47 Md.App. 287, 295 , 421 A.2d 1385 (1980): “This Court faced a similar issue in Palmer v. State, 14 Md.App. 159 [ 286 A.2d 572 ] (1972), where the defendant sought to suppress narcotics paraphernalia found in the stolen car he was driving at the time of his arrest. We concluded that ‘[n]o valuable social purpose could conceivably be served by extending the protection of the Fourth Amendment to a thief in the enjoyment of the stolen automobile.’ Id. at 169 [ 286 A.2d 572 ]. Other jurisdic ⁹⁹ tions, both before and after Rakas [v. Illinois, 439 U.S. 128 , 99 S.Ct. 421 , 58 L.Ed.2d 387 (1978) ], have reached similar conclusions. See, e.g., State v. Thomas, 595 S.W.2d 325 (Mo.App.1980); Khaalis v. United States, 408 A.2d 313 (D.C.1979), cert. den. 444 U.S. 1092 [ 100 S.Ct. 1059 , 62 L.Ed.2d 781 ] (1980); State v. Abordo [ 61 Haw. 117 ], 596 P.2d 773 (Hawaii 1979); State v. Purcell, 586 P.2d 441 (Utah 1978); Mack v. State, [ 177 Ind.App. 537 ,] 380 N.E.2d 592 (Ind.App.1978); People v. Pearson [ 190 Colo. 313 ], 546 P.2d 1259 (Colo.1976).

Although a few courts have reached the opposite result, e.g. Barr v. State, 531 P.2d 1399 (Okla.Cr.App.1975), Cotton v. United States, 371 F.2d 385 (9th Cir.1967), it is significant that in Rakas the Supreme Court characterized such holdings as ‘inexplicable.’ Rakas, supra, 439 U.S. at 141, n. 9 [ 99 S.Ct. at 429, n. 9 ], We therefore conclude that appellant was not deprived of any Constitutionally protected right by the search of the moped or the backpack—that, in gre-Rakas terms, he had no ‘standing’ to object to either of these searches.” (Footnote omitted). The ingenious argument that is seemingly being put forth by the appellant is that although the suppression hearing judge had ample evidence to support his conclusion that the car was stolen and that the appellant, based not only upon possession but upon his elaborate efforts to conceal the identity of the car by substituting his own tags and serial number for the originals, was in all likelihood the thief, the policeman who conducted the warrantless automobile search did not have such substantial evidence. Thus, the argument is that even if the suppression hearing judge could reasonably have concluded that the appellant lacked standing in the automobile, the searching policeman could not.

In support of this argument, the appellant urges that even though Judge Cave knew that the automobile had been ¹⁰⁰ stolen from Arne Drud, the policeman at the time of the search had no such knowledge. He urges further that although there were suspicious circumstances with respect to the ownership of the automobile just before the initiation of the search—the “punched out” ignition, the loosely attached serial numbers, and the equivocation of the appellant in twice asserting but also twice denying ownership of the car—those doubts were dispelled moments into the search. He suggests that notwithstanding the fact that the police may have had a right to make a preliminary inspection of the car in order to determine who owned it, when that inspection yielded the appellant’s driver’s license attached to the sun visor and when a radio check of the license tags indicated that the car was registered to the appellant, no further search of the car was justified. The bottom line of the argument is that the evidence available to the policeman at the time of the automobile search was not such as to permit a reasonable conclusion that the car was stolen and that the appellant, therefore, lacked standing to object to its search.

The fatal flaw in that argument is that the policeman is not called upon to determine a suspect’s standing to object. Standing is an exclusively adjudicative issue to be determined by a judge in a courtroom on the basis of evidence adduced then and there in the courtroom. It is not an investigative issue to be determined by a policeman on the street on the basis of facts known to the policeman at that time and place. As a threshold issue, standing determines only the entitlement to litigate the Fourth Amendment merits.

It has nothing to do with the merits themselves. A properly disciplined approach to any search and seizure problem involves the asking of two very fundamental and conceptually distinct questions: 1. IS THE FOURTH AMENDMENT EVEN APPLICABLE? 2. HAS THE FOURTH AMENDMENT BEEN SATISFIED? ¹⁰¹ More important, perhaps, than the two fundamental questions themselves is the direction that is lurking there between them: “Do not go on to question # 2 unless the answer to question # 1 is, ‘Yes.’ ” If the Fourth Amendment is, indeed, applicable—in that it covers the place searched, it covers the person of the searcher, and it involves a Fourth Amendment protection of the defendant—then we go on to the merits.

The thrust of the Fourth Amendment is that the police behave reasonably when they search and when they seize. When the