State v. Fernon

HOLLANDER, Judge. In this expedited appeal filed by the State pursuant to Maryland Code (1998 RepLVol., 1999 Cum.Supp.), 12-302(e)(3) of the Courts and Judicial Proceedings Article (“C.J.”), the State challenges an Order of the Circuit Court for Talbot County suppressing marijuana and drug paraphernalia recovered from a locked console in the passenger compartment of a motor vehicle belonging to Benjamin Femon, appellee. The vehicle search was conducted shortly after Femon was arrested on a charge of driving while intoxicated (“DWI”), and while he was handcuffed and seated in the police car with the seat belt fastened. As a result of the search, Femon was also charged with possession with intent to distribute marijuana and related drug offenses. ⁴³ On January 11, 2000, the State timely noted its appeal from the suppression order. 1 Thereafter, on January 28, 2000, Femon pleaded guilty to the offense of driving under the influence of alcohol, after expressly waiving any potential double jeopardy claims regarding the drug charges that were the subject of his motion to suppress.

The circuit court then granted Femon probation before judgment and placed him on supervised probation for one year. In its appeal, the State poses one question for our consideration: Did the lower court err in granting Femon’s motion to suppress on the ground that the search of Femon’s car was not a proper search incident to arrest? To answer that question, we must determine whether the police conducted a lawful vehicle search incident to Femon’s custodial arrest for DWI, given that, at the time of the search, Femon was handcuffed and placed in a police car at the scene. For the reasons stated below, we conclude that the search was conducted incident to appellee’s arrest and that the circuit court erred in suppressing the evidence recovered from appellee’s vehicle.

Accordingly, we shall reverse and remand. FACTUAL SUMMARY Our review of the trial court’s decision with respect to a suppression motion “ordinarily is limited to information contained in the record of the suppression hearing.” Cartnail v. State, 359 Md. 272, 282 , 753 A.2d 519 (2000); see Ferris v. State, 355 Md. 356, 368 , 735 A.2d 491 (1999); Trusty v. State, 308 Md. 658, 670 , 521 A.2d 749 (1987); Hardy v. State, 121 Md.App. 345, 353 , 709 A.2d 168 , cert. denied, 351 Md. 5 , 715 A.2d 964 (1998). In our review, we give due regard to the motion judge’s opportunity to assess the credibility of the witnesses, McMillian v. State, 325 Md. 272, 281-82 , 600 A.2d ⁴⁴ 430 (1992), and we defer to the factual findings of the suppression judge, unless clearly erroneous. See Ferris, 355 Md. at 368 , 735 A.2d 491 .

Moreover, we review the evidence in the light most favorable to the prevailing party. Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990). Nevertheless, we must make our own independent constitutional appraisal as to whether the search was lawful. Ornelas v. United States, 517 U.S. 690, 697 , 116 S.Ct 1657 , 134 L.Ed.2d 911 (1996); Cart-nail, 359 Md. at 282-83 , 753 A.2d 519 ; Jones v. State, 111 Md.App. 456, 465 , 681 A.2d 1190 , cert. denied, 344 Md. 117 , 685 A.2d 451 (1996).

This is accomplished by reviewing the law and applying it to the first-level facts found by the suppression judge. In re Tariq A-R-Y, 347 Md. 484, 488-89 , 701 A.2d 691 (1997); Riddick, 319 Md. at 183 , 571 A.2d 1239 ; Howard v. State, 112 Md.App. 148, 156 , 684 A.2d 491 (1996), cert. denied, 344 Md. 718 , 690 A.2d 524 (1997). At the suppression hearing held on December 16, 1999, Maryland State Trooper C. Lewis was the only witness. Although the material facts are undisputed on appeal, the parties hotly contest the application of the law to the facts.

Appellee was traveling westbound on U.S. Route 50 during the early morning of July 10, 1999. At approximately 1:38 a.m., Trooper Lewis effectuated a traffic stop of a 1990 Jeep Wrangler because it was exceeding the posted speed limit. At the time, Lewis was accompanied by Trooper Anthony Balchun, who was an officer in training. Fernon was identified as the driver of the Jeep, and he was the sole occupant of the vehicle.

Both officers approached the driver’s window of the Jeep. Lewis testified that, as he approached the driver’s window of the Jeep, he “detected a strong odor of an alcoholic beverage about the breath and person of Mr. Fernon.” Thereafter, Balchun asked appellee to exit his vehicle in order to perform a field sobriety test, which was conducted on the shoulder of the road in the area between the Jeep and the police vehicle. 2 ⁴⁵ At approximately 1:49 a.m., after the completion of the field sobriety test, appellee was placed “under arrest for drinking and driving.” He was then handcuffed behind his back and placed in the front passenger seat of the police vehicle with the seat belt fastened. At that point, Lewis conducted “a quick cursory search” of the police vehicle, which took “a minute or two,” in order “to make sure no personal effects were laying about.” Trooper Lewis and Trooper Balchun then conducted a search of appellee’s vehicle. In response to questioning, Trooper Lewis acknowledged that the vehicle search was “solely based on a search incident to [appellee’s] custodial arrest based on the DWI.” Using appellee’s keys, Trooper Balchun unlocked the center console located between the driver and passenger seats in the Jeep. 3 Lewis described the console as about six inches wide, ten to twelve inches long, and six or seven inches deep.

From inside the console, Lewis recovered a large plastic bag containing six smaller, individually wrapped clear plastic baggies, each containing suspected marijuana. A cellophane wrapper, similar to the kind found on a cigarette pack, was also found in the console, and it contained suspected marijuana. In addition, a copper smoking pipe was located in the console. According to Lewis, the items were recovered from the Jeep within minutes of appellee’s arrest at 1:49 a.m.

Lewis also testified that, at 1:58 a.m., he notified the Easton Barracks that “CDS” had been recovered from the Jeep. Therefore, the search was completed no later than nine minutes after appellee’s arrest. In moving to suppress the evidence recovered from the Jeep, appellee did not contest the legality of his arrest or complain because the items were seized from a locked console in the vehicle. Rather, defense counsel maintained that the evidence was obtained in violation of appellee’s rights under ⁴⁶ the Fourth Amendment, because the police conducted an unlawful warrantless search.

Relying on the principles of New York v. Belton, 453 U.S. 454 , 101 S.Ct. 2860 , 69 L.Ed.2d 768 (1981), and other cases, the defense attorney asserted that the police did not perform a lawful search incident to arrest, because Fernon was handcuffed and placed in the patrol car at the time of the search. Thus, she argued that when the search was made, the Jeep no longer constituted the immediate surrounding area to which Fernon had access; he could not have obtained a weapon from the Jeep or destroyed evidence in it. Consequently, defense counsel maintained that the police exceeded the permissible scope of a search incident to arrest. The State countered that the police were entitled under Belton and other cases to conduct a contemporaneous search of a locked container in the passenger compartment of the Jeep, incidental to Fernon’s lawful arrest, notwithstanding that he was handcuffed and placed in the police car at the time of the search.

The trial court granted appellee’s- suppression motion in a written Order filed on December 28, 1999. The court reasoned: The State has argued that the search of the [appellee’s] vehicle was a valid search “incident to a lawful arrest” even when the [appellee] was handcuffed in the police vehicle. See New York v. Belton, 453 U.S. 454 [ 101 S.Ct. 2860 , 69 L.Ed.2d 768 ] (1981); see also State v. Ott, 85 Md.App. 632 [ 584 A.2d 1266 ] (1991), rev’d on other grounds, 325 Md. 206 [ 600 A.2d 111 ] (1992); [United States] v. Mitchell, 82 F.3d 146 (7 th Cir.1996); [United States] v. Willis, 37 F.3d 313 (7 th Cir.1994); and [United States] v. Mans, 999 F.2d 966 (6 Cir.1993). The State has, however, failed to convince the Court that the search was valid.

Initially, the Court recognizes that the rationale for a search incident to a lawful arrest was to prevent an arrestee from “gain[ing] possession of a weapon or destructible evidence.” Chimel v. California, 395 U.S. 752, 763 [ 89 S.Ct. 2034 , 23 L.Ed.2d 685 ] (1969). Further, the Court notes that the State must overcome the presump ⁴⁷ tion that all warrantless searches “are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well delineated exceptions.” Katz v. [United States], 389 U.S. 347, 357 [ 88 S.Ct. 507 , 19 L.Ed.2d 576 ] (1967). While a search “incident to a lawful arrest” is one of those exceptions, the facts in this case do not support the exception as laid out in Belton . The Court held in Belton that a “lawful custodial arrest creates a situation justifying the contemporaneous warrantless search of the arrestee and of the immediately surrounding area.” Id. at 463 [ 101 S.Ct. 2860 ] (emphasis added).

In Belton , however, after the occupants were arrested, a search of the vehicle was conducted while the arrestees stood immediately outside of the vehicle. Further, the officer previously smelled burning marijuana and viewed an envelope on the driver’s side floor area containing suspected marijuana. The ease at bar is sharply distinguished by the facts in Belton . In the case sub judice, the [appellee] presented virtually no threat because he was seated and handcuffed in the front seat of the Maryland State Police patrol car.

Further, the Belton Court specifically stated in a footnote that “[o]ur holding today does no more than determine the meaning of ChimeVs principles in this particular and problematic context. It in no way alters the fundamental principles established in the Chimel case regarding the basic scope of the searches incident to lawful custodial arrest.” Belton, 453 U.S. at 463, fn. 3 [ 101 S.Ct. 2860 ]. The principles established in Chimel do not permit the scope of a “search incident to arrest” to extend to the passenger compartment of a vehicle when the arrestee has been removed from its proximity and the search is not contemporaneous to the arrest. The Chimel Court placed temporal and spatial limitations on searches incident to a lawful arrest, excusing compliance with the warrant requirement only when the search is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest.

See Chimel, 395 U.S. at 762-63 [ 89 S.Ct. 2034 ]. ⁴⁸ * * * The Court is convinced that in the case sub judice that there was no valid evidence or reason for the police officers to be concerned that the [appellee] was either a threat to them or might destroy evidence. Therefore, the search incident to the lawful arrest was not valid and the contraband seized from the search must be suppressed. DISCUSSION On appeal, the State concedes that Femon had “little or no chance of destroying evidence or obtaining a weapon from his vehicle,” because he was handcuffed and seated in the police car at the time of the search. Nevertheless, the State argues that the trial court erred in granting appellee’s motion to suppress the contraband found in his car, because the police executed a lawful search incident to appellee’s arrest, and the search was not rendered unconstitutional as a result of appellee’s secured status at the time of the search.

Based on the underlying rationale of the search incident to arrest doctrine, including the principles elucidated in Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969), and New York v. Belton, 453 U.S. 454 , 101 S.Ct. 2860 , 69 L.Ed.2d 768 , appellee argues that “the scope of a search incident to arrest [does not] extend to the passenger compartment of a vehicle when the arrestee has been remoyed from its proximity and the search is not contemporaneous to the arrest.” Appellee maintains that the search offended the Fourth Amendment because it was not confined to the immediate vicinity of appellee’s arrest, it was arguably “too remote,” and any threat to the officers’ safety presented by appellee was “completely removed” when appellee was handcuffed and placed in the police car. The parties agree, however,' that the police did not conduct an inventory search of the vehicle. Moreover, at oral argument, the State confirmed that it does not rely on the automobile exception to the warrant requirement, embodied in Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 ⁴⁹ (1925), and its progeny, as the justification for the search, presumably because the police lacked probable cause to search the Jeep. Additionally, as we noted, appellee does not challenge the legality of his arrest or complain because the drugs were recovered from a locked console.

Therefore, our inquiry focuses solely on whether the police conducted a lawful search incident to arrest. We begin our analysis with the Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961); Owens v. State, 322 Md. 616, 622 , 589 A.2d 59 , cert. denied 502 U.S. 973 , 112 S.Ct. 452 , 116 L.Ed.2d 470 (1991). It guarantees, inter alia, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures .... ” Nevertheless, “[t]he Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable.” Florida v. Jimeno, 500 U.S. 248, 250 , 111 S.Ct. 1801 , 114 L.Ed.2d 297 (1991) (citing Illinois v. Rodriguez, 497 U.S. 177 , 110 S.Ct. 2793 , 111 L.Ed.2d 148 (1990)); see United States v. Sharpe, 470 U.S. 675, 682 , 105 S.Ct. 1568 , 84 L.Ed.2d 605 (1985); Rosenberg v. State, 129 Md.App. 221, 239 , 741 A.2d 533 (1999), cert. denied, 358 Md. 382 , 749 A.2d 173 (2000). “[Sjearches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable ... subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967).

A warrantless search incident to an individual’s lawful arrest is one of these exceptions. United States v. Robinson, 414 U.S. 218, 235 , 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973); Ricks v. State, 322 Md. 183, 188 , 586 A.2d 740 (1991); Rosenberg, 129 Md.App. at 239 , 741 A.2d 533 . Two historical rationales undergird the validity of a warrantless search incident to a lawful arrest: (1) the need to disarm the suspect to prevent the suspect from resisting arrest or effecting escape, and for the safety of the officers and others; and (2) the need to prevent concealment or destruction of evidence. Belton, ⁵⁰ 453 U.S. at 457 , 101 S.Ct. 2860 ; Robinson, 414 U.S. at 234 , 94 S.Ct. 467 ; Chimel, 395 U.S. at 763 , 89 S.Ct. 2034 .

In the seminal case of Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 , the Supreme Court concluded that the warrantless search of the defendant’s entire house, conducted incident to and contemporaneous with his arrest in the house for a burglary charge, was unreasonable under the Fourth and Fourteenth Amendments, because the search “went far beyond the petitioner’s person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him.” Id. at 768 , 89 S.Ct. 2034 . In the Supreme Court’s view, there was no “justification” for searching “any room other than that in which an arrest occurs,” or “for searching through all the desk drawers or other closed or concealed areas in that room itself.” Chimel, 395 U.S. at 763 , 89 S.Ct. 2034 . The Court explained: When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated.

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 its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule____ There is ample justification, therefore, for a search of the arrestee’s person and the area “within his immediate control”—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence. Id. at 762-63 , 89 S.Ct. 2034 . See James v. Louisiana, 382 U.S. 36, 37 , 86 S.Ct. 151 , 15 L.Ed.2d 30 (1965) (holding that a search of a petitioner’s home after his arrest on the street two blocks away “cannot be regarded as incident to arrest”). ⁵¹ Some twelve years later, in Belton, 453 U.S. 454 , 101 S.Ct. 2860 , 69 L.Ed.2d 768 , the Supreme Court considered the application of Chimel to a search of the passenger compartment of an automobile, conducted incident to the arrest of the driver and three passengers.

There, the police vehicle stopped a speeding car and determined that none of the men owned the ear or was related to the owner. As the officer spoke with the men, he noticed the smell of “burnt marijuana” and saw a suspicious envelope on the floor of the car. The officer then directed all the men to exit the vehicle, patted them down, separated them, and retrieved the envelope, in which he found marijuana. Thereafter, the officer searched the passenger compartment of the vehicle and found Belton’s jacket on the back seat.

The officer then searched the jacket and discovered cocaine in the zippered pocket. At Belton’s trial for possession of cocaine, he sought to suppress the drugs seized from his coat. The New York Court of Appeals held that the search was unlawful because, when it was performed, there was no danger that any of the arrestees might gain access to the vehicle or the jacket. Disagreeing with the reasoning of that court, the Supreme Court reversed.

The Supreme Court recognized that, in numerous cases around the country, courts had experienced difficulty in applying the search incident to arrest doctrine. Belton, 453 U.S. at 458 , 101 S.Ct. 2860 . The Court also acknowledged the difficulty of finding a “workable definition of ‘the area within the immediate control of the arrestee’ when that area arguably includes the interior of an automobile and the arrestee is its recent occupant.” Id. at 460 , 101 S.Ct. 2860 . Thus, the Court sought to establish a “straightforward rule” regarding “the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its occupants,” 453 U.S. at 459 , 101 S.Ct. 2860 , which would avoid the necessity for “ ‘subtle nuances and hairline distinctions’ ” that are difficult for an officer in the field to apply.

Id. at 458 , 101 S.Ct. 2860 (citation omitted). Accordingly, the Court endeavored to craft “ ‘[a] single familiar standard ... to guide police officers, who ⁵² have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.’ ” Id. at 458 , 101 S.Ct. 2860 (quoting Dunaway v. New York, 442 U.S. 200, 213-14 , 99 S.Ct. 2248 , 60 L.Ed.2d 824 (1979)). That effort culminated in the Supreme Court’s holding in Belton : “[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Belton, 453 U.S. at 460 , 101 S.Ct. 2860 (footnote omitted). So long as “[a] custodial arrest ... [is] based on probable cause,” then “no additional justification” is needed for the search incident to arrest.

Id. at 461 , 101 S.Ct. 2860 . Indeed, such a search is a “reasonable intrusion under the Fourth Amend-. ment.” Id. Applying the same logic, the Belton Court included within the search incident the right to search containers located in the passenger compartment of a vehicle. It reasoned that a container, like the passenger compartment itself, is within reach of the arrestee.

Id. at 460 , 101 S.Ct. 2860 . The Court defined a “container” as “any object capable of holding another object [and] includes closed or open glove compartments, consoles, and other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like.” Id. at 461 n. 4, 101 S.Ct. 2860 (emphasis added). 4 ⁵³ Significantly, the Belton Court rejected the contention that the search and seizure was not incident to arrest because the police obtained “exclusive control” of the jacket. The Court said: “[U]nder this fallacious theory no search or seizure incident to a lawful custodial arrest would ever be valid; by seizing an article even on the arrestee’s person, an officer may be said to have reduced that article to his ‘exclusive control.’ ” Belton, 453 U.S. at 461 n. 5, 101 S.Ct. 2860 . Moreover, the Court recognized that the validity of a search incident to arrest “does not depend on ... the probability in a particular arrest situation that weapons or evidence would in fact be found____’” Id. at 461 , 101 S.Ct. 2860 (citation omitted).

Although Belton involved the search of a motor vehicle, the Court’s decision was not premised on the automobile exception to the warrant requirement. Moreover, Belton has generally been construed to apply to all searches incident to arrest; its application has not been limited to vehicle searches. State v. Smith, 119 Wash.2d 675 , 835 P.2d 1025 , 1028 n. 3 (1992). Nevertheless, appellee contends that Belton is factually inapposite because any threat posed by Femon was dissipated when he was handcuffed and placed inside the police car.

By contrast, in Belton the threat was not alleviated because the four “suspects were standing by the side of the car ...” when the vehicle was searched. Belton, 453 U.S. at 457 , 101 S.Ct. 2860 . In resolving whether the search of appellee’s vehicle fell within the ambit of Belton or, instead, was unlawful because of appellee’s secured status in the police vehicle during the search, we are aware of only one reported Maryland appellate case that has addressed the issue of a vehicle search incident to arrest, while the arrestee is handcuffed. 5 See State v. Ott, ⁵⁴ 85 Md.App. 632, 647 , 584 A.2d 1266 (1991), rev’d on other grounds, 325 Md. 206 , 600 A.2d 111 , cert. denied, 506 U.S. 904 , 113 S.Ct. 295 , 121 L.Ed.2d 219 (1992). In Ott, the trial court found illegal a vehicle search conducted incident to arrest, because the arrestee was handcuffed and could not have reached the glove compartment of his ear, where the contraband was located.

This Court rejected that reasoning, stating: “[Ujnder Belton , an officer may conduct a vehicle search even though the defendant has been removed from the car, handcuffed, and even placed in the police cruiser.” Id. at 647, 584 A.2d 1266 (citing 3 Wayne R. LaFave, Search and Seizure, § 7.1(c), at 15 n. 73 (1987 and Supp.1991)). Thus, we concluded that the police were entitled to conduct a contemporaneous vehicle search as an incident of a lawful arrest, including the car’s glove compartment, notwithstanding the absence of any threat to officer safety or the risk of destruction of evidence once the arrestee was handcuffed. Although Foster v. State, 297 Md. 191 , 464 A.2d 986 (1983), cert. denied, 464 U.S. 1073 , 104 S.Ct. 985 , 79 L.Ed.2d 221 (1984), did not involve a car search, and the facts are distinguishable from the case sub