Titow v. State

MOYLAN, Judge. The appellant, Leon Titow, was convicted in the Circuit Court for Anne Arundel County of the unlawful possession of cocaine with intent to distribute. Upon this appeal, he raises the single contention that his motion to suppress the physical evidence was erroneously denied. The appellant’s suitcase was searched by a combined team of special agents of the Federal Drug Enforcement Administration and narcotics officers of the Anne Arundel County Police Department.

The search took place at the Baltimore-Washington International Airport shortly after the appellant alighted from a flight from Miami. The search was warrantless. The State argued and the trial judge found that the search satisfied the Fourth Amendment’s reasonableness standards under the theory that the appellant had voluntarily consented to the search. Schneckloth v. Bustamonte, 412 U.S. 218 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973).

At the suppression hearing, the appellant strenuously denied ever having consented to the search. DEA Agent Masiello, on the other hand, testified that although the appellant initially objected to the search of his suitcase, he ultimately consented. The trial judge, as was his fact-finding prerogative, chose to believe Agent Masiello and to disbelieve the appellant. We defer completely to that fact finding. ⁵⁵⁸ Even accepting the State’s most favorable version of the facts, as we must, we nonetheless conclude that those facts, as a matter of law, do not establish voluntary consent within the contemplation of Schneckloth v. Bustamonte.

As Schneckloth discussed and as Bumper v. North Carolina, 391 U.S. 543 , 88 S.Ct. 1788 , 20 L.Ed.2d 797 (1968), made clear, even ostensible consent is not voluntary when it is “no more than acquiescence to a claim of lawful authority.” 391 U.S. at 549 , 88 S.Ct. at 1792 . In this case, the “claim of lawful authority” that was effectively communicated to the appellant—through a combination of words, actions, and selected silence—was, “You may as well consent to the search of your luggage because we are going to hold it (and presumably search it) in any event.” Even under the State’s version of the evidence, the state and federal agents approached the appellant and four others near an exit of the airport. Agent Masiello asked the persons stopped if they would mind answering a few questions. They replied that they would not.

Agent Masiello somehow obtained both the appellant’s airline ticket and his driver’s license. Instead of simply inspecting and returning them, he retained them. When Agent Masiello asked the appellant for consent to search the appellant’s bag, the appellant told him unequivocally that he did not want his bag searched and would not consent. When Agent Masiello told the appellant that the agent was going to seize the luggage and issue the appellant a receipt, the appellant became vociferous and was calmed down by two of his companions.

The appellant demanded to know why the agents wanted to search his luggage. When Agent Masiello replied that he had reason to suspect that the luggage contained contraband, the appellant persisted in his objection to a search. Even under the State’s best version of the facts, the pivotal testimony of Agent Masiello was as follows: “... And again I offered the choice, you’re free to go, we’ll issue you a receipt for your bags,