Scott v. State

Orth, J., delivered the opinion of the Court. This case presents questions as to the admissibility of evidence seized substantially contemporaneously with the arrest of the appellant in premises occupied by him. 1 ⁵⁰⁷ THE LAW The police have the right to conduct a contemporaneous search of the arrestee’s person for weapons, fruits ⁵⁰⁸ or instrumentalities of the crime, or “mere” evidence, incident to a lawful arrest. See Terry v. State of Ohio, 892 U. S. 1 , 25. Such a search is reasonable in order to remove any weapons that the arrestee might seek to use in order to resist arrest or eifect his escape and to secure any evidence in order to prevent its concealment or destruction. 2 While this right to search the person of the arrestee was clearly established, the scope of a warrant-less search beyond the person of the arrestee as incident to a lawful arrest was not.

To say the least, the cases on the point decided by the Supreme Court do not lend themselves to easy summarization. In Abel v. United States, 362 U. S. 217 the Court acknowledged that “the several cases on this subject in this Court cannot be satisfactorily reconciled.” However, it came to be considered that such a search may generally extend, as being reasonable, to the area that is considered in the “immediate possession” or under the “immediate control” of the person arrested. 3 ⁵⁰⁹ The test of reasonableness could not be stated in rigid and absolute terms, Harris v. United States, 331 U. S. 145 , and must find resolution in the facts and circumstances of each case, United States v. Rabinowitz, 339 U. S. 56 . The rule was simply stated but was difficult in its application to given circumstances for it could not be clearly defined, from an abstract point of view, depending as it did, on the interpretation of such phrases as “immediate presence,” “immediate control” or “immediate surroundings” of the arrestee in the light of the facts of a particular case. But it seemed that a search incident to a valid arrest, otherwise reasonable, was not automatically rendered invalid by the fact that a dwelling place rather than business premises was subjected to search and that the right to search was not limited to the room in which the arrest took place.

Harris v. United States, supra. In Harris , where a four room apartment was searched, it was observed that the area which reasonably may be subjected to search was not to be determined by the fortuitous circumstances that the arrest took place in the living room as contrasted to some other room of the apartment. 4 It appeared, however, that the bounds of reasonableness were overstepped when the premises searched were separated from the place where the arrest was made, as when the office of the accused was searched following his arrest at his home, Silverthorne Lumber Co. v. United States, 251 U. S. 385 , or as when a home, several blocks from the house where the arrests were made, was searched, Agnello v. United States, 269 U. S. 20 . The search could not be a “general” and “exploratory” one; it appeared that the validity of a search without a search warrant may be affected by ⁵¹⁰ the method of search, Anno: 4 L.Ed.2d 1983 , 1988. And a search was held unreasonable when a great mass of property was seized (the seizure of the entire contents of a house being barred) Kremen v. United States, 353 U. S. 346 ; Anno: 4 L. Ed. 1983 , 1990.

But a search made without a search warrant, as an incident to a lawful arrest, was not illegal merely because there was time for the arresting officers to have procured a search warrant. United States v. Rabinowitz, supra. Both the Court of Appeals and this Court have stated the rule to be that “the right to search and seize without a warrant (incident to a lawful arrest) extends to things under the accused’s immediate control and to an extent depending upon the circumstances of the case, to the place where he is arrested.” Gross v. State, 235 Md. 429, 440 ; Huber v. State, 2 Md. App. 245, 260 . The decisions of this State have not established that the permissible scope of the search is necessarily confined to the room in which the arrest was made.

For example, in Huber we found that although the arrest took place as the accused admitted the officers into his apartment, a search of the entire apartment was justified and evidence found in the bedroom was lawfully seized under the circumstances there existent. And in Davis v. State, 236 Md. 389 the officers conducted a search of the house following the arrest, and in a hamper in the bathroom, located next to the room in which the accused was arrested, took certain clothing. The Court held that “this search was within the limits of the areas within the control of the arrestee and justified the seizure of the evidence.” At 397. A hatchet admitted in evidence was found in a tool box located on the side of the house, close to the point where the victim of the homicide for which the arrestee was convicted was found.

The Court said, at 397, “Since the perpetrator of this crime used the curtilage of the house, as well as the interior thereof, for his illegal activity, we find that this search was justified as incidental to the arrest of the accused”, citing Gault ⁵¹¹ v. State, 231 Md. 78 ; Rucker v. State, 196 Md. 334 . See also Matthews v. State, 228 Md. 401 . On this state of the law the Supreme Court decided Chimel v. State of California, 395 U. S. 752 , 89 Sup. Ct. 2034, 23 L.Ed.2d 685 (1969).

Chimel makes abundantly clear that the general principle is that a search and seizure is to be made under the authority of a search warrant based on probable cause. 5 “Clearly, the general requirement that a search warrant be obtained is not lightly to be dispensed with, and ‘the burden is on those seeking [an] exemption [from the requirement] to show the need for it * * citing United States v. Jeffers, 342 U. S. 48, 51 . The Court pointed out that in Terry v. Ohio, 392 U. S. 1 , it emphasized that “the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure,” id., at 20 , and that “[t]he scope of [a] search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Id., at 19 . Thus, the basic criterion is that the search be reasonable. What is reasonable depends upon “the facts and circumstances— the total atmosphere of the case,” citing United States v. Rabinowitz, supra at 66, but “those facts and circumstances must be viewed in the light of established Fourth Amendment principles.” When a person is lawfully arrested, there is a need to prevent the officer’s safety from being endangered and the arrest itself frustrated.

Therefore, a search of the arrestee’s person, substantially contemporaneous with the arrest, in order to remove any weapons, is reasonable. “In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent ⁵¹² its concealment or destruction.” And, the Court said, the area within the arrestee’s “immediate control,” must, of course, be governed by a like rule. Chimel then defined the area which may be considered within the arrestee’s “immediate control.” It construed that area to mean “the area from within which he might gain possession of a weapon or destructible evidence.” It spoke of such area also as that into which he “might reach in order to grab a weapon or evidentiary items. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested.” (Emphasis supplied.) And it said later in the opinion: “No consideration relevant to the Fourth Amendment suggests any point of rational limitation, once the search is allowed to go beyond the area from which the person arrested might obtain weapons or evidentiary items. The only reasoned distinction is one between a search of the person arrested and the area within his reach on the one hand, and more extensive searches on the other.” The Court left no doubt that routinely searching rooms other than that in which an arrest occurs is not reasonable.

Nor is there justification “for searching through all the desk drawers or other closed or concealed areas” even in the room in which the arrest occurs. “Such searches, in the absence of well recognized exceptions, may be made only under the authority of a search warrant. (Citing Katz v. United States, 389 U. S. 347, 357-358 .) The ‘adherence to judicial processes’ mandated by the Fourth Amendment requires no less.” So the permissible scope of the search is limited to the arrestee’s person and the area within his immediate control, stated to mean the area from “within which (the arrestee) might gain possession of a weapon or destructible evidence.” Such area is not further defined other than by referring to it as “the area within his reach” and the area into which he ⁵¹³ “might reach in order to grab a weapon or evidentiary items” and by remarking that a “gun on a table or in a drawer in front of one who is arrested” can be dangerous to the arresting officer. (Emphasis supplied.) But as the search is tested by its reasonableness and its scope is justified by the need to protect the arresting officer and to prevent the destruction of evidence, we cannot construe Chimel to mean that the area is confined to that precise spot which is at arm length from the arrestee at the moment of his arrest. He may well lunge forward or move backward or to the side and thus into an area in which he might grab a weapon or evidentiary items then within his reach before the officer could, by the exercise of reasonable diligence, restrain him.

We think that Chimel requires that the State show that the search was conducted and items were seized in an area “within the reach” of the arrestee in this concept, as for example, by evidence as to the location of the items with respect to the whereabouts of the arrestee, the accessibility of the items and their nature. 6 It was not determined in Chimel whether the principles therein endorsed would be retroactively applied. But, as will hereinafter be apparent, we are faced with the question and must resolve it, looking for guidance in the rationale of other opinions of the Supreme Court dealing with the retroactivity of the various rules from time to time enunciated. First, however, we are led to believe by two per curiam opinions decided the same day as Chimel that the Court had in mind at the most something less than full retroactivity. In Von Cleef v. New Jersey, 395 U. S. 814 , 89 S. Ct. 2051 , 23 L.Ed.2d 728 (1989), the petitioners’ attacked the lower court’s conclusion that a search and seizure were constitutionally permissible as being incident to a valid arrest.

The Court said: “This challenge would unquestionably be well ⁵¹⁴ founded if today’s decision in Chimel v. California, ante, p. 752, were given retroactive application. But we need not decide here whether Chimel should be applied retroactively. For even under the constitutional standards prevailing before Chimel , see United States v. Rabinowitz, 339 U. S. 56 ; Harris v. United States, 331 U. S. 145 , the search and seizure involved here were constitutionally invalid.” In Shipley v. California, 395 U. S. 818 , 89 S. Ct. 2053 , 23 L.Ed.2d 732 (1969), the Court said: “Under our decision today in Chimel v. California, 395 U. S. 752 , the search clearly exceeded Fourth Amendment limitations on searches and seizures incident to arrest. But even if Chimel were to have no retroactive application — a question which we reserve for a case which requires its resolution — there is no precedent of this Court that justifies the search in this case.” Hopefully, we think it logical that had the Court felt that Chimel must have full retroactive application it would have so indicated in those opinions and resolved the matter.

We also find support for our belief that Chimel should not have full retroactive application in Desist v. United States, 89 S. Ct. 1030 . In the face of a claim that Katz v. United States, 389 U. S. 347 did not present a choice between prospective and retroactive application of new constitutional doctrine because the Court in that decision did not depart from any existing interpretations of the Constitution, but merely confirmed the previous demise of obsolete decisions enunciating the distinction between “trespassory” searches and those in which there was no physical penetration of the protected premises, the Court said Katz recognized that the holdings in Goldman v. United States, 316 U. S. 129 and Olmstead v. United States, 277 U. S. 438 had not been overruled until that day. “However clearly our holding in Katz may have been foreshadowed, it was a clear break with the past, and we are thus compelled to decide whether its application should be limited to the future.” 89 S. Ct. 1033 . We think that Chimel recognized that its rulings were a clear break with the past. In concluding that a warrantless search ⁵¹⁵ of an arrestee’s entire house cannot be constitutionally justified as incident to his arrest the Court observed that its decisions “bearing upon that question have been far from consistent, as even the most cursory review makes evident.” It stated that United States v. Rabinowitz, supra, “has come to stand for the proposition, inter alia, that a warrantless search ‘incident to a lawful arrest’ may generally extend to the area that is considered to be in ‘possession’ or under the ‘control’ of the person arrested,” but it noted, note 4, that its decisions since Rabinowitz “have applied the abstract doctrine of that case to various factual situations with divergent results.” It traced the history of the rule as from time to time enunciated, remarking on the lack of authority or weaknesses in the decisions relied upon in such enunciations and noting the swinging of the pendulum back and forth.

It observed that Marron v. United States, 275 U. S. 192 , holding that as incident to a lawful arrest, there was a right contemporaneously to search the place where an arrest occurs, was founded on the dictum of Agnello v. United States, supra, which had expanded, without explanation, on a principle in Carroll v. United States, 267 U. S. 132 , which had embellished a statement made as dictum in Weeks v. United States, 232 U. S. 383 , which statement made no reference to any right to search the place where an arrest occurs but was limited to a right to search the “person.” It said that Go-Bart Importing Co. v. United States, 282 U. S. 344 , and United States v. Lefkowitz, 285 U. S. 452 , made evident that Marrón did not mean all that it seemed to say but that the limiting views expressed in Go-Bart and Lefkowitz “were thrown to the winds” in Harris v. United States, supra, where thorough search of an entire apartment and the seizure of a sealed envelope marked “George Harris, personal papers” containing documents used to secure conviction, found inside a desk drawer, were found to be reasonable as “incident to arrest.” A year later in Trupiano v. United States, 334 U. S. 699 , although the arrest was found to have been valid, the search was found to be un ⁵¹⁶ lawful because of the unexplained failure of the authorities to procure a search warrant when they had enough time before the search to do so. Two years after Trupiano, Rabinowitz rejected the rule that “in seizing goods and articles, law enforcement agents must secure and use search warrants wherever reasonably practicable”, the Court stating that the test “is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.” 339 U. S. at 66 . The Court felt that what Rabinowitz has come to stand for, at least in the broad sense, “can stand neither historical nor rational analysis.” It held that Rabinowitz and Harris , “on their own facts, and insofar as the principles they stand for are inconsistent with those we have endorsed today, * * * are no longer to be followed.” We think that the principles in Rabinowitz and Harris which were inconsistent with those endorsed in Chimel were not overruled until the Chimel decision. Even though they had been relied upon less and less in the Court’s decisions, the time had not come to announce that they were no longer to be followed until the Chimel decision. 7 It was established in Linkletter v. Walker, 381 U. S. 618 , 629 that “the Constitution neither prohibits nor requires retrospective effect” for decisions expounding new constitutional rules affecting criminal trials.

Thereafter, said the Court in Desist , it viewed the retroactivity or nonretroactivity of such decisions as a function of three considerations. 89 S. Ct. 1033 . These considerations were summarized in Stovall v. Denno, 388 U. S. 293, 297 . “[T]he criteria guiding resolution of the question implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the admin ⁵¹⁷ istration of justice of a retroactive application of the new standards.” Desist held that Katz is to be applied only to cases in which the prosecution seeks to introduce the fruits of electronic surveillance conducted after 18 December 1967, the date of the Katz decision. We think that Desist , in its consideration of the criteria guiding resolution of the question reaching its holding, is directly apposite to the consideration of the question here before us. The Court said, 89 S. Ct. 1033 -1034 : “[the first] criterion strongly supports prospectivity for a decision amplifying the evidentiary exclusionary rule.

Thus, it was principally the Court’s assessment of the purpose of Mapp v. Ohio 367 U. S. 643 , 81 S. Ct. 1684 , 6 L.Ed.2d 1081 , which led it in LmkletLer to deny those finally convicted the benefit of Mapp’s extension of the exclusionary rule to the States: ‘All of the cases * * * requiring the exclusion of illegal evidence have been based on the necessity for an effective deterrent to illegal police action. * * * We cannot say that this purpose would be advanced by making the rule retrospective. The misconduct of the police * * * has already occurred and will not be corrected by releasing the prisoners involved.’ 381 U. S., at 637 , 85 S. Ct. at 1741 . We further observed that, in contrast with decisions which had been accorded retroactive effect, ‘there is no likelihood of unreliability or coercion present in a search-and-seizure case’; the exclusionary rule is but a ‘procedural weapon that has no bearing on guilt,’ and ‘the fairness of the trial is not under attack.’ 381 U. S., at 638-639 , 85 S. Ct. at 1742 .” And in Fuller v. Alaska, 393 U. S. 80 , it was held that the exclusionary rule of Lee v. Florida, 392 U. S. 378 , should be accorded only prospective application. The sec ⁵¹⁸ ond and third criteria which the Court found in Desist to militate in favor of applying Katz prospectively, also militate in favor of applying Chimel prospectively.

The area to be searched incident to an arrest had been widely construed in reliance on Harris and Rabinowitz as not confined to the room in which the arrest took place and certainly not to a restricted area within that room. As the Court itself recognized in Chimel , even its own decisions applied the doctrine of Rabinowitz to various factual situations with divergent results and some courts carried the Rabinowitz approach to such length as to permit a search of a man’s house when he was arrested nearby. Chimel , note 10. The Court said in Chimel , “It is not easy to explain why, for instance, it is less subjectively ‘reasonable’ to search a man’s house when he is arrested on his front lawn — or just down the street — than it is when he happens to be in the house at the time of arrest.” As to the third criterion the Court in Desist found no cause to doubt that the number of state convictions obtained in reliance on pr e-Katz decisions are substantial, at 1034-1035.

We think that the number of convictions in this State obtained in reliance on pr e-Chimel decisions are substantial although we note that the Court said that “because the deterrent purpose of Katz overwhelmingly supports nonretroactivity, we would reach the same result even if relatively few convictions would be set aside by its retroactive application.” At 1035. In Chimel as in Katz , both the deterrent purpose of the exclusionary rule and the reliance of law enforcement officers focus upon the time of the search, not any subsequent point in the prosecution, as the relevant date. Exclusion of evidence seized before Chimel would increase the burden on the administration of justice, would overturn convictions based on fair reliance upon pr e-Chimel decisions, and would not serve to deter similar searches and seizures in the future. See 89 S. Ct. 1036 .

We hold that Chimel is to be applied only to cases in which the prosecution seeks to introduce the fruits of a search conducted after 23 June 1969. ⁵¹⁹ THE APPLICATION OF THE LAW TO THE FACTS The appellant was found guilty generally in a court trial in the Criminal Court of Baltimore under an indictment charging possession of heroin (1st count) and control of heroin (2nd count). He was sentenced generally to imprisonment for a term of 5 years. At the trial he challenged the admissibility of the evidence offered against him. The challenged evidence consisted of a red capsule, State’s exhibit No. 2; 35 “clear gelatin capsules of white powder,” State’s exhibit No. 3; “a teaspoon with traces on same,” “three and a half gelatin capsules with traces inside of them,” “one clear plastic bag which had traces and pieces of foil,” all contained in a brown paper bag in which there was also another bag “from Heneson’s Pharmacy” containing 250 clear gelatin capsules, State’s exhibit No. 4 as an entirety; and 50 “clear capsules of white powder,” State’s exhibit No. 10.

Reports of the “United State’s Chemist” established that the red capsule, exhibit No. 2 and the 35 clear gelatin capsules, exhibit No. 3, and the 50 capsules, exhibit No. 10, were filled with heroin hydrochloride; and as to exhibit No. 4, the clear plastic bag and the three and a half capsules contained traces of heroin hydrochloride — no prohibited drugs were detected on the teaspoon or the tin foil or in the 235 clear capsules. This evidence was obtained by searches falling into two categories, (1) by a search of the room in which the appellant was arrested, and, (2) by a search elsewhere on the premises. We deem both searches to have been substantially contemporaneous to a valid arrest. As they were conducted on 4 June 1968, Chimel is not applicable.

(1) The police were admitted to the premises 1516 Ash-land A_venue, stated to be the address of the appellant, and upon receiving information that the appellant, for whom they had a warrant of arrest (see note 1 herein), was on the third floor proceeded up the steps. Kratsch observed the appellant “at the doorway of the third floor ⁵²⁰ front bedroom. He went back in the room. I followed him back in.

At that time, he was advised and shown this warrant from Anne Arundel County * * *. A search incidental to the arrest was made * * Kratsch said it was the appellant’s bedroom. 8 Exhibit No. 2 was found in a “tan waist length jacket, which was the property of Harold Scott, which was laying on the bed” in the room in which the appellant was arrested. The articles admitted as exhibit No. 3 were found “in the left coat pocket” of a black topcoat in the same room “on the rear of his bedroom door as the door swings into the bedroom. It would be on the door, between the door and the wall on the side bedroom.” The items composing exhibit No. 4 were found on a metal clothes closet in the room. . “As you would be coming into the room, the door swings in against the wall, right where the edge of this door was the metal clothes closet. * * * Right inside the bedroom door on the right-hand side, like when the door swings in against the wall, the metal closet is right there. ⁵²¹ * * * On top of this clothes closet on the outside ‘was the brown paper bag.’ The metal clothes closet was about six feet high.

The bedroom contained ‘a twin-sized bed on the left and like a single bed on the right.’ ” There were other clothes on the bed with the tan jacket. Evidence admitted as exhibits 2, 3 and 4 were seized by Detective Kratsch. The court held that the arrest of the appellant was valid and that the searches of the appellant, his clothing and the bedroom in which he was arrested were lawful as incident to the arrest. We believe that the search of the appellant’s room, contemporaneous with his valid arrest, and the seizure of the evidence thus obtained were reasonable as within his “immediate control” as that phrase has been construed prior to Chimel. 9 However, aware that neither the State in presenting its case, nor the lower court in making its factual findings and rulings had the benefit of the Chimel opinion, we cannot say that the evidence was sufficient to support a finding that the search conducted and the items seized were within the “immediate control” of the appellant as we have found that phrase to be construed in Chimel .

Although it was shown where the items were found, their locations in relation to the appellant were not established, and, while they may well have been within an area into which the appellant might have reached in order to grab them, we cannot so conclude on the record before us. We note that there were no factual findings as to that matter by the lower court and we are not a fact finding body. It was for this reason that we made a determination of the retroactivity of Chimel . As the search was reasonable under the pre-Chimel rules and as Chimel is not applicable, the evidence seized was properly admissible.

(2) After the appellant’s arrest Corporal Massone went ⁵²² downstairs. He informed the appellant’s mother “of what was going on,” gave her the Miranda, warnings, “just as a matter of courtesy,” informed her “that she was not under arrest and not in custody. However, her son was. I desired to search the premises for any contraband, that is narcotics.

She said I could search anywhere. As a result of that conversation, I did search.” On cross-examination on the issue of the legality of the search, Massone said, “We had searched the upstairs incidental to the arrest. As far as the downstairs was concerned, I desired to get the consent of Mrs. Scott * * * I would have made a reasonable search incident to the arrest anyway.” He was asked, “So that you didn’t need Mrs. Scott’s consent?” and replied, “That’s right.” He further stated “I made a reasonable search with the consent. I would have made a reasonable search without consent. * * * I might not have gone into certain pocketbooks (without the consent).” He found a small manila envelope in which were 50 clear gelatin capsules containing a white powder, exhibit No. 10, in a pocketbook which he later ascertained belonged to the appellant’s sister, Melinda Scott, who was not present at the time.

The testimony of the appellant’s mother was that one of the officers went downstairs and she followed him. Another officer was there and “they were whispering to each other. Then they started to go over to the buffet looking in pocketbooks and looking in the china.” She was asked if the officers asked if they could search. She said, “As I got ready to tell him that the house was not my house, it’s my mother’s, I’m not the proprietor.

He said, ‘If you don’t let me search, I’m going to search anyhow.’ That’s what he said. * * * I just stayed there and looked at them. I didn’t say anything. They kept on searching.” It was at this stage of the trial that the court first ruled on the admissibility of the challenged evidence. The ruling clearly went only to the search of the appellant’s clothing and his room, the court saying, “I * * * will limit