Sellman v. State

DEBORAH S. EYLER, Judge. In a bench trial, the Circuit Court for Anne Arundel County convicted Marvin Leonard Sellman, the appellant, of possession of a controlled dangerous substance and driving on a revoked license. The court sentenced the appellant to one year in prison for the possession conviction and six months in prison for the driving on a revoked license conviction, to be solved consecutively. On appeal, the appellant asks two questions, which we have shortened: I. Did the trial court err in denying his motion to suppress evidence?

II

Was the evidence sufficient to support his possession conviction? ⁶ For the following reasons, we answer the first question “yes,” and therefore shall reverse the appellant’s conviction for possession of a controlled dangerous substance. We answer the second question “yes” as well. Accordingly, we shall remand the case to the circuit court for further proceedings not inconsistent with this opinion. FACTS AND PROCEEDINGS On December 19, 2001, at 12:30 a.m., Anne Arundel County Police Officer Robert Novotny was on patrol on Route 198 in Anne Arundel County when he spotted a Mercury Tracer “hatchback” vehicle with blue front signal lights and a cracked windshield, both in violation of the Maryland Transportation Code.

The officer activated his cruiser’s emergency lights to make a traffic stop. The driver complied, pulling the Tracer into the lighted parking lot of a service station. Officer Novotny approached the Tracer, saw that the appellant was its sole occupant, and asked him to produce his driver’s license and the vehicle’s registration. The appellant produced a Maryland identification card and told the officer that his driver’s license was suspended.

The appellant also told Officer Novotny that he did not know where the vehicle registration was because the Tracer belonged to his cousin. Officer Novotny returned to his cruiser and ran a Motor Vehicle Administration (“MVA”) check of the appellant’s driving record, which showed that his driver’s license had been suspended in 1992 and revoked in 1993, and remained revoked. The officer also ran an MVA check on the status of the Tracer and its registration tags and learned that there was an outstanding “pickup order” for the car and an order to secure the tags, which were expired. In addition, Officer Novotny determined that the owner of the Tracer was one Travis Delante Bryant of Upper Marlboro.

After obtaining that information, Officer Novotny placed the appellant under arrest for driving while revoked. He performed a pat-down of the appellant’s person, which revealed ⁷ nothing, and then placed him in the front passenger seat of the police cruiser with the seat belt buckled around him. Officer Novotny called for a tow truck. He then proceeded to search the Tracer.

In a red nylon bag in the hatchback area of the vehicle, the officer found a handgun and a glassine bag containing a green substance, later identified as 24.34 grams of marijuana. The appellant was charged with transporting a handgun, possession of a controlled dangerous substance (marijuana), driving while suspended, and driving while revoked. The court granted the appellant’s motion for judgment of acquittal on the driving while suspended charge and found the appellant not guilty of transporting a handgun. As noted above, the court found the appellant guilty of possession of marijuana and driving while revoked.

Additional facts will be included in our discussion of the issues. DISCUSSION I. The appellant contends that the trial court erred in denying his motion to suppress from evidence the marijuana Officer Novotny found in the red nylon bag in the hatchback area of the Tracer. He maintains that the search of the Tracer and seizure of the contraband violated his rights under the Fourth Amendment to the United States Constitution; and therefore the contraband should have been excluded from evidence. See Mapp v. Ohio, 367 U.S. 643, 655 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961) (holding that Fourth Amendment and exclusionary rule is applicable to the States under the Fourteenth Amendment).

Ordinarily, in an appeal from the denial of a motion to suppress evidence on Fourth Amendment grounds, we look only to the evidence adduced at the suppression hearing. Cartnail v. State, 359 Md. 272, 282 , 753 A.2d 519 (2000). In this case, there was no suppression hearing. Instead, the court made the suppression ruling during the bench trial. ⁸ When the prosecutor was questioning Officer Novotny, the State’s first witness, and asked what he found in the course of searching the Tracer, defense counsel objected.

The court asked whether the objection was based on a search and seizure question. Defense counsel answered that it was. The court and counsel then agreed that the court would rule on the suppression objection at the end of Officer Novotny’s testimony. Accordingly, the evidence pertinent to the suppression ruling in this case is the testimony of Officer Novotny at trial.

Officer Novotny testified that he learned from the MVA check that the tags on the Tracer were no longer in effect and “there was an outstanding pickup order, and an investigation to secure those tags.” After arresting the appellant for driving while revoked and placing him in the police cruiser, Officer Novotny called for a tow truck and then “proceeded to conduct a search of the vehicle, prior to having it towed.” By then, Officer Kelly Harding, also of the Anne Arundel County Police Department, had arrived on the scene. She stood by the cruiser while Officer Novotny undertook the search. Officer Novotny testified that he searched the automobile by beginning at the front and working his way to the back. He explained that he “always start[s] at the front of the vehicle around the driver’s seat; that’s just my habit....” When his search reached the back of the vehicle, he used the key from the ignition to unlock and open the hatchback door.

The inside of the hatchback consisted of a “small lid-type structure overtop of a compartment.” Officer Novotny lifted the lid-type structure and saw inside the compartment a red nylon bag bearing the word “Marlborough” [sic]. He opened the uppermost, small section of the red bag and saw a glassine baggie containing greenish vegetable matter, which he recognized to be marijuana. He then opened the bottommost, large section of the red bag and found a silver revolver with black duct tape on it. When in response to questions by the prosecutor Officer Novotny began to describe other items he found in the “Marlborough” bag, including a pair of shorts and ski masks, the ⁹ defense lodged objections on the ground that the other items were not relevant, and the objections were sustained.

Officer Novotny testified on cross-examination that he performed an inventory of the contents of the Tracer, which “would have been on [his] tow slip[,]” and that the inventory would have included the contents of the passenger compartment of the vehicle. He stated that he did not give the appellant a copy of the inventory, however. Also, in response to questions by defense counsel asking if he recalled whether there were packages on the front seat of the car, Officer Novotny testified that he did not recall. At the conclusion of Officer Novotny’s testimony, the court heard argument of counsel on the suppression motion.

Defense counsel argued that the search was not a constitutionally permissible search of a vehicle incident to arrest, under New York v. Belton, 453 U.S. 454 , 101 S.Ct. 2860 , 69 L.Ed.2d 768 (1981), because the hatchback compartment was not part of the passenger compartment of the car; rather, it was akin to a car trunk. The prosecutor responded by saying that even if the court were not inclined to find that the search was a proper search incident to arrest, “the stronger argument ... is that [the car] had to be towed” because of the expired tags and that the search was proper as an inventory search. When the court questioned the prosecutor about Officer Novotny’s not having produced the inventory, the following colloquy took place: [PROSECUTOR]: [Officer Novotny] testified that he did do the inventory. [The State is] not obligated to give you the inventory slip in order to prove that he did an inventory, unless they want to somehow suggest that he didn’t. I didn’t understand that to be the argument.

But the car was in fact towed. We certainly can put into evidence the tow slip, which moved it. I didn’t consider that an issue, but I am happy to recall him and put that into evidence, because I do have it. But the car was towed, and in order to have it towed, they had to do an inventory search of it. ¹⁰ THE COURT: Right. [PROSECUTOR]: So, I think that is certainly consistent.

It would be a different story, I agree with Your Honor, if we couldn’t show the car had been towed, and it sat on the side of the road; it wouldn’t make any sense that he did an inventory slip. But if he is going to have it towed, under the County rules they wouldn’t have been able to tow it without him giving them the inventory slip. So, he testified it was towed. It was in fact towed.

I would argue that obviously at an inventory search they would have to search all of it anyway, and that it would have been acceptable under an inventory search. Defense counsel responded that he “agree[d] with [the prosecutor] that the evidence is clear that the vehicle was going to be towed, and that that would have provided justification to do an inventory search.” He argued, nevertheless, that the “question in this case is whether an inventory search really was conducted.” Defense counsel acknowledged the officer’s testimony that he performed an inventory and stated he had no “reason to doubt [the officer’s] word that he considered what he was doing as an inventory search.” He pointed out, however, that Officer Novotny’s search ceased when he found the contraband and that he did not give the appellant a copy of an inventory. Defense counsel further stated: “I think we’ve got justification for an inventory, but the burden is on the State to show that it [the inventory search] is pursuant to some general administrative procedure in that regard.” He summarized his argument as follows: So that my argument in this case would be, certainly there is justification for an inventory. The officer has told you that he did an inventory.

But there is no evidence regarding procedure. Now again, I am sure counsel is correct that the County has a procedure for inventorying vehicles. We don’t have any evidence in this case that that was filed, though. And I would say that the evidence suggests that when incriminating evidence was found here, the inventory stopped.

There is absolutely nothing to suggest that the legitimate purposes of doing the inventory—at ¹¹ least a safe-keeping function—that there was any effort made to fulfill that. The prosecutor replied by emphasizing that the evidence was not that Officer Novotny went straight to the hatchback area of the car, searched, found contraband, and stopped, but that he began to search from the front of the car, worked his way to the rear, and eventually came upon the contraband in the last area of the car that he searched, at which point he stopped, because the search was completed. The court found that the search of the Tracer was a valid inventory search that did not violate the appellant’s Fourth Amendment rights, and denied the motion to suppress on that basis. It ruled: Sir, I am going to deny the motion, because I do believe that it is a valid stop and approach of your client.

Once [Officer Novotny] approached your client, he did learn that he was suspended. He also learned, prior to saying that he wanted a tow truck to arrive, that the tags were the wrong tags for the vehicle. And I think that would give him every reason to sequester the automobile and have an inventory before the tow truck arrived, and I think he sufficiently described that procedure as what he used. He did say—I had in my notes that he went from the front of the car to the back, inventorying the items in the car.

And I think that the inventory search is really a valid justification for the search. So, I am going to deny your motion. The appellant argues that the absence of evidence at trial that Anne Arundel County has standardized rules or procedures authorizing and regulating inventory searches of vehicles and that Officer Novotny conducted the search of the Tracer pursuant to any such rules and regulations was fatal to the State’s argument that the search was a constitutionally permissible inventory search. The State responds that the appellant waived for appellate review his argument that the search violated his Fourth Amendment rights; and that his argument lacks merit in any event.

The State also argues ¹² that the search was a valid search incident to arrest under New York v. Belton, supra, 453 U.S. 454 , 101 S.Ct. 2860 , 69 L.Ed.2d 768 , and should be upheld on that basis even if it is not upheld as a valid inventory search. In his reply brief, the appellant argues that the State waived the Belton issue and that it is otherwise non-meritorious. Waiver By the Appellant The following facts are relevant to the State’s waiver argument. On March 6, 2002, the appellant’s public defender filed an “Omnibus Motion Entry of Appearance Request for Chemist.” The motion stated that the entry of appearance shall be deemed to incorporate by reference and include the filing of the Defendant’s Request for Discovery and Motion to Produce Documents, the Motion to Suppress Evidence and Motions pursuant to Maryland Rule 4-252, copies of which are on file with the Clerk of the Court and the Office of the State’s Attorney, as if such Request and Motions were filed in full in this case.

Less than two weeks later, a prosecutor in the Anne Arun-del County State’s Attorney’s Office wrote to the appellant’s public defender stating, inter alia: “I note you have filed certain motions pursuant to Rule 4-252. I am assuming that, at this point in time, you do not wish a hearing on these motions. If that is incorrect, please contact me and I will set them in for a hearing prior to trial.” The next day, the prosecutor filed an “Answer to Motion to Suppress,” which said: “[A]ll evidence in the above-captioned case was lawfully obtained under the United States Constitution and Constitution of Maryland.” Apparently, the appellant’s public defender did not respond to the prosecutor’s letter and made no effort to schedule a pre-trial suppression hearing. On July 25, 2002, a private lawyer entered his appearance on the appellant’s behalf, replacing his public defender coun ¹³ sel.

At that time, trial was scheduled for August 1, 2002. The trial went forward as scheduled without a pre-trial suppression hearing’s having been requested or held. The question whether the search of the Tracer was in violation of the appellant’s Fourth Amendment rights first was raised at trial, during the direct examination of Officer Novot-ny. When the officer was asked to describe what he had found in the search of the Tracer, defense counsel objected, without specifying any grounds.

The following ensued: THE COURT: Okay. Are you preserving that, sir? Are you objecting because you think there is a search and seizure issue? [DEFENSE COUNSEL]: I think that there is a search and seizure issue, Your Honor. And frankly, I just entered my appearance last week, but I understand the motions were filed in a timely manner.

THE COURT: Okay. All right. [DEFENSE COUNSEL]: It hadn’t been litigated yet— THE COURT: All right. That will be preserved, sir. I will consider that when we hear what it is.

The State maintains that the appellant waived his Fourth Amendment search and seizure argument by not requesting a suppression hearing before trial, under Rule 4-252. After citing cases addressing waiver by failing to file a mandatory motion under that rule, the State argues that, notwithstanding that the court ruled on the suppression motion, “there was no specific finding of good cause to excuse [the appellant’s] belated motion to suppress!,]” and therefore the issue was not preserved for review. Rule 4-252(a) provides that certain “mandatory motions,” including a motion raising an unlawful search and seizure, “shall be raised by motion in conformity with this Rule and if not so raised are waived unless the court, for good cause shown, orders otherwise.” Subsection (b) of the Rule requires that such mandatory motions be filed with certain specified time frames. Subsection (c) further provides that a mandatory motion shall be in writing unless the court otherwise directs ¹⁴ and shall state the grounds on which it is made and the relief sought, and shall contain a statement of points and authorities.

Subsection (g) of Rule 4-252, entitled “Determination,” states: “Generally. Motions filed pursuant to this Rule shall be determined before trial and, to the extent practicable, before the day of trial.... ” In this case, the mandatory motion to suppress evidence on the basis of an illegal search and seizure was filed by the appellant, and was timely filed. Accordingly, the waiver provision of subsection (a) of the Rule is not applicable. To be sure, the motion was not heard by the court before trial.

Subsection (g) of the Rule does not contain a waiver provision, however. To the contrary, by the use of the word “[gjenerally,” the Rule takes into account that the court sometimes will not rule on a mandatory motion before trial. The appellant’s failure to request a suppression hearing before trial did not effect an automatic waiver of the suppression issue, as the State suggests. Moreover, the question whether the appellant waived the suppression issue for review by not showing good cause to explain why he did not request a pre-trial suppression hearing was itself not preserved by the State.

When the appellant’s trial counsel objected and moved to suppress during Officer Novotny’s testimony, the State did not respond by raising the issue of the appellant’s not having requested a pre-trial motion to suppress. Nor was the issue raised by the State during the argument on the motion to suppress. The argument was not made at all, and therefore cannot be raised for the first time on appeal Rule 8—131(a). Standard of Review In considering the evidence on which a suppression motion is based, we extend great deference to the judge’s fact-finding, determinations about witness credibility, and weighing of the evidence.

In re Tariq A-R-Y, 347 Md. 484, 488-89 , 701 A.2d 691 (1997), cert. denied, 522 U.S. 1140 , 118 S.Ct. 1105 , 140 L.Ed.2d 158 (1998); Farewell v. State, 150 Md.App. 540 , ¹⁵ 562 n. 5, 822 A.2d 513 , No. 2958, Sept. Term, 2000 (2003). When there is conflicting evidence, we accept the factual findings of the motion judge unless they are clearly erroneous. Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990), overruled in part on other grounds, Wengert v. State, 364 Md. 76 , 771 A.2d 389 (2001). We view the evidence in the light most favorable to the prevailing party.

State v. Rucker, 374 Md. 199 , 821 A.2d 439 (No. 28, Sept. Term 2003). With respect to the ultimate determination whether there has been a constitutional violation, we make our own independent appraisal by reviewing the law and applying it to the facts of the case. Id.; Carter v. State, 367 Md. 447, 457 , 788 A.2d 646 (2002). Inventory Search The Fourth Amendment to the United States Constitution prohibits, inter alia, unreasonable searches and seizures by government officers. 1 Warrantless searches are presumed to be unreasonable, with several well-recognized exceptions.

United States v. Karo, 468 U.S. 705, 717 , 104 S.Ct. 3296 , 82 L.Ed.2d 530 (1984). See, e.g., United States v. Ross, 456 U.S. 798 , 102 S.Ct. 2157 , 72 L.Ed.2d 572 (1982) (automobile exception to the warrant requirement); Schneckloth v. Bustamonte, 412 U.S. 218 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973) (consent as an exception); Warden v. Hayden, 387 U.S. 294 , 87 S.Ct. 1642 , 18 L.Ed.2d 782 (1967) (exigent circumstances as an exception). One of those, the “inventory search,” was recognized by the Supreme Court in South Dakota v. Opperman, 428 U.S. 364 , 96 S.Ct. 3092 , 49 L.Ed.2d 1000 (1976). In Opperman , the defendant’s automobile was towed and impounded by the police pursuant to a municipal ordinance authorizing confiscation of vehicles having multiple parking violations.

A police officer, following procedures established by the police department, conducted an inventory search of ¹⁶ the impounded car, and found a baggie of marijuana in the glove compartment. The defendant was charged with possession of a controlled dangerous substance. He moved to suppress the marijuana from evidence on the ground that it was obtained in violation of his Fourth Amendment rights. The Supreme Court held that the warrantless inventory-search of the impounded automobile was reasonable and therefore did not violate the Fourth Amendment.

The Court explained that when automobiles are taken into the custody of local police departments, in furtherance of their community caretaking functions, the departments ordinarily follow “a routine practice of securing and inventorying the automobiles’ contents!,]” to protect the police against claims or disputes over lost or stolen property and from danger; and that in applying the Fourth Amendment reasonableness standard in prior opinions, the Court “ha[d] consistently sustained police intrusions into automobiles impounded or otherwise in lawful police custody where the process is aimed at securing or protecting the car and its contents.” South Dakota v. Opper-man, supra, 428 U.S. at 373 , 96 S.Ct. 3092 . The Court upheld the search as a reasonable intrusion, concluding that, under the facts and circumstances of the case, the police were “indisputably engaged in a caretaking search of a lawfully impounded automobile!,]” with no suggestion that the standard police procedure they were following “was a pretext concealing an investigatory police motive.” Id. at 375-76, 96 S.Ct. 3092 . In Illinois v. Lafayette, 462 U.S. 640 , 103 S.Ct. 2605 , 77 L.Ed.2d 65 (1983), the Court applied the inventory search exception outside the context of an automobile search. The defendant was arrested for disturbing the peace and was taken to the police station.

The police department had a routine booking procedure that required officers to inventory “everything” in the possession of an arrested person. Id. at 648 , 103 S.Ct. 2605 . Pursuant to that procedure, an officer emptied the contents of the defendant’s shoulder bag and discovered illegal drugs. In defending the resulting drug possession charges, the defendant argued that the search of ¹⁷ his shoulder bag violated his Fourth Amendment rights.

Ultimately, the Supreme Court rejected that argument, holding that it is reasonable for the police to search the personal effects of a person under lawful arrest as part of the routine administrative procedure at the police station incident to booking and jailing the suspect. The Court returned to the automobile context when it addressed inventory searches of closed containers, in Colorado v. Bertine, 479 U.S. 867 , 372, 107 S.Ct. 738 , 93 L.Ed.2d 739 (1987). The defendant was arrested for driving while intoxicated. After the arrest but before a tow truck arrived to transport his van to the police impound lot, the arresting officer searched the van, “in accordance with local police procedures, which require[d] a detailed inspection and inventory of impounded vehicles.” Id. at 369, 107 S.Ct. 738 .

The officer discovered a closed backpack located directly behind the front seat of the van. He looked inside the backpack and found a nylon bag containing canisters that contained illegal drugs, drug paraphernalia, and a large sum of cash. The defendant was charged with drug related offenses. The defendant challenged the constitutional validity of the search on the ground that the search of the closed backpack exceeded the scope of a permissible inventory search.

The Supreme Court of Colorado, relying not on inventory search cases but on investigatory search cases holding that searches of trunks and suitcases must be supported by probable cause, held the search unconstitutional. The United States Supreme Court reversed. It distinguished inventory searches, which are routine, non-criminal procedures that concern police community caretaking functions and are meant to protect impounded property from harm and the police from claims and disputes over the property, from investigatory searches, which are concerned with probing criminal conduct, and therefore implicate the probable cause and warrant requirements of the Fourth Amendment. Id. at 371-72, 107 S.Ct. 738 .

The Court held that “reasonable police regulations relating to inventory procedures administered in ¹⁸ good faith satisfy the Fourth Amendment.” Id. at 374, 107 S.Ct. 738 . In a footnote, the Court emphasized that the trial court found that the police department’s procedures mandated the opening of closed containers and the listing of their contents, and the Court’s decisions “ha[d] always adhered to the requirement that inventories be conducted according to standardized criteria.” Id. at 374 n. 6, 107 S.Ct. 738 . The Court’s footnote in Bertine was a focus of discussion in Florida v. Wells, 495 U.S. 1 , 110 S.Ct. 1632 , 109 L.Ed.2d 1 (1990), in which it held a search of an automobile was not a valid inventory search. In Wells , the defendant’s car was impounded after he was arrested for driving under the influence.

The defendant gave the Florida State Highway Patrol trooper who arrested him permission to search the trunk of the impounded car. At the impoundment lot, an inventory search was conducted and revealed two marijuana cigarettes in an ashtray and a locked suitcase in the trunk. Under the trooper’s direction, the suitcase was opened. It contained a garbage bag holding a large quantity of marijuana.

The defendant was charged with possessing illegal drugs. The defendant challenged the search on the ground that it violated the Fourth Amendment. At the suppression hearing, the State characterized the search as an inventory search, but did not introduce any evidence that the search was conducted in accordance with any standardized inventory procedure. The State did not introduce an inventory sheet and the officer did not testify that he actually inventoried the items in the car.

The motion court denied the motion to suppress, and the defendant ultimately was convicted of the drug possession charge. On appeal before the Florida Supreme Court, the Florida State Highway Patrol filed an amicus brief asserting that the “Florida Highway Patrol Forms and Procedural Manual” contained the standard policy governing the search in this case. The Supreme Court of Florida held that the search was not conducted pursuant to the standard policy, however, because the policy did not provide any direction about opening closed containers. When the case was argued before the ¹⁹ United States Supreme Court, the State conceded that the policy manual was not in effect at the time of the search.

It argued, however, that the officer had performed the search in accordance with standard operating procedures that later were incorporated in the manual. Yet, the officer had not testified at the suppression hearing that he had conducted the search in accordance with any standard operating procedures. The Court held that, in the absence of any policy respecting the opening of closed containers encountered in the course of