Waugh v. State

⁶⁸⁴ Moylan, J., delivered the opinion of the Court. “[F]or the purpose of the Fourth Amendment there is a constitutional difference between houses and cars.” Chambers v. Maroney, 399 U. S. 42, 52 , 90 S. Ct. 1975 , 26 L.Ed.2d 419 (1970). As the ever-growing common law continues to require fresh responses to fresh questions, it poses (for Maryland) the new riddle: “Is a suitcase more like a house or more like a car?” In terms of functional analysis — the weighing of the nature of the sanctuary against the investigative imperative — a suitcase is, we hold, “more like a car.” Before supplying the rationale for the answer, let us set the stage for the question. The appellant, William B. Waugh, was convicted by an Anne Arundel County jury, presided over by Judge Ridgely Melvin, of possession of marihuana with intent to distribute. The only issue upon this appeal is whether eighteen bricks of marihuana, * the subject of the possession charge, were constitutionally seized from two yellow suitcases being carried by the appellant at the moment of his arrest.

The investigative spore led from Tucson, Arizona, via American Airlines through Dallas, Texas, to its denouement in the baggage claim area of the Baltimore-Washington International Airport (Friendship). That denouement came at shortly after 11:24 p.m. on August 22, 1972. Maryland State Police Corporal Warren Pitt, and two fellow officers, had gone to Friendship Airport to meet incoming flight 324 from Dallas and Tucson. They maintained simultaneous surveillances at the passenger gate and at the baggage claim area.

The appellant was arrested moments after he picked up the two yellow suitcases. The suitcases were seized and opened and revealed the eighteen bricks of marihuana. Since the arrest, the seizure and the search were all warrantless, we look to the information then in the mind of Corporal Pitt to determine the constitutionality of his warrantless action. Although Corporal Pitt observed the appellant, who matched perfectly the description then in hand, and ⁶⁸⁵ although Corporal Pitt observed the two yellow suitcases, which matched perfectly (even to the extent of baggage claim numbers) the description then in hand, Corporal Pitt had no direct and personal knowledge as to probable criminality on the part of the appellant or as to the probable presence of contraband in his impedimenta.

All such suspicion came to Corporal Pitt through someone else. It is now axiomatic, however, that probable cause “may be based on hearsay information and need not reflect the direct personal observations” of the officer. Aguilar v. Texas, 378 U. S. 108, 114 , 84 S. Ct. 1509 , 12 L.Ed.2d 723 (1964); Jones v. United States, 362 U. S. 257 , 80 S. Ct. 725 , 4 L.Ed.2d 697 (1960). It need only be shown that there was “a substantial basis for crediting the hearsay.” Jones, supra, at 362 U. S. 269 ; Stanley v. State, 19 Md. App. 507, 515-522 , 313 A. 2d 847, 852-857 .

Early in the evening of August 22, Lt. Leon Tomlin, of the Narcotics Squad of the Baltimore City Police Department, received a telephone call from a colleague in Tucson, Arizona, one Detective Schwartz. Schwartz informed Tomlin about a shipment of marihuana believed to be en route from Tucson to Baltimore. Because the Friendship Airport is not within the strict geographic limits of Baltimore City, however, Lt.

Tomlin passed the information on to Corporal Pitt of the Maryland State Police. Although Corporal Pitt was fully entitled to rely upon the “credibility” of Lt. Tomlin, as a fellow officer, Lt. Tomlin was shortly thereafter eliminated as an intermediate conduit in the transmission of information.

Corporal Pitt, at 7:45 p.m., dialed 602-791-4643 in Tucson and put himself in direct contact by “view telephone” with Detective Schwartz. This police practice of making direct contact is a commendable one, if only in terms of simplifying ultimate judicial analysis by removing one intermediate level in the transmission of hearsay information. That Corporal Pitt, now in direct contact with Detective Schwartz, was entitled to rely upon this fellow law enforcement officer as a “credible” information source is not to be doubted. United States v. Ventresca, 380 U. S. 102 , 85 S. Ct, 741 , 13 L.Ed.2d 684 (1965); ⁶⁸⁶ Rugendorf v. United States, 376 U. S. 528 , 84 S. Ct. 825 , 11 L.Ed.2d 887 (1964); Whiteley v. Warden, 401 U. S. 560 , 91 S. Ct. 1031 , 28 L.Ed.2d 306 (1971); Dawson v. State, 14 Md. App. 18 , 284 A. 2d 861 ; Schmidt v. State, 17 Md. App. 492 , 302 A. 2d 714 .

What then was the information passed on to Corporal Pitt by this “credible” primary source? Detective Schwartz furnished detailed descriptions of both the appellant and his luggage: “He described the subject as being a white male, approximately six feet one inches tall, a hundred and sixty pounds, approximately twenty-three years, shoulder length hair, a brown mustache, wearing an orange shirt with multi-colored tie, a brown sports coat and brown slacks, white boots and a white belt. And also this subject would be in possession of two American Tourister suitcases yellow in color, one being a three suiter suitcase and the other being a two suiter suitcase.” Detective Schwartz informed Corporal Pitt that the appellant had left Tucson on American Airlines flight 324 en route to Baltimore, with an intermediate stop in Dallas. Detective Schwartz gave Corporal Pitt the baggage claim numbers on the two suitcases.

Detective Schwartz informed Corporal Pitt that the appellant’s name was “either Waugh or Baugh; they weren’t positive on the name.” 1 Thus far, the information coming from Detective Schwartz was necessary in pinpointing the objects of the ultimate arrest and search, but was innocuous in terms of supplying a constitutional predicate for such actions. We turn now to the inculpatory substance of the hearsay information. At the pretrial suppression hearing, Corporal Pitt was ⁶⁸⁷ asked whether he learned of the “basis of knowledge” for Detective Schwartz’s allegation that the suitcases contained marihuana. Corporal Pitt replied: “He advised me that on information received from a reliable confidential informant, he went to the airport on information from this informant that this subject and the bags or luggage contained the marijuana.

As a result of this information he advised me that he went to the airport, observed the luggage, observed the subject, as I described, and smelled what he knew to be marijuana from his past experience. He advised me that he had been in law enforcement for approximately ten to twelve years. And from his experience and his arrests had led to prior convictions for narcotic violations. As a result of the smelling of the suitcases and the information from the informant, in fact, did open the two pieces of luggage and did, in fact, observe thirty-one bricks of marihuana in the above suitcases.” Detective Schwartz further advised Corporal Pitt that he (Schwartz) had removed 13 of the 31 marihuana bricks, leaving 18 inside the suitcases, which he closed and sent upon their way.

Probable Cause for the Suitcase Search in Maryland, We will address ourselves initially to the limited issue of whether probable cause existed, and will defer for the moment the further question of whether some additional factor (such as exigency or the arrest of the person) must 1) conjoin with the probable cause to justify a warrantless search (in the case of exigency) or 2) serve as an independent predicate for a warrantless search or seizure (in the case of an arrest of the person). In this regard, we note initially that we are dealing with the search and seizure of the suitcases made by Corporal Pitt at approximately 11:24 p.m. at the Friendship Airport in Maryland and not with the search of the suitcases made ⁶⁸⁸ by Detective Schwartz some hours earlier in Tucson, Arizona. These were distinct actions with distinct predicates and only the latter of them (the Maryland search) was the direct object (in terms of probable cause) of the suppression hearing now under appellate review. The appellant, somehow confusing the basis for the Arizona search with the basis for the Maryland search, argues that Corporal Pitt had no probable cause to believe that the two yellow suitcases arriving at the Friendship Airport contained contraband.

He focuses his argument on the following testimony of Corporal Pitt, recounting information passed on to Corporal Pitt from Detective Schwartz in Tucson: .“He advised me that on information received from a reliable confidential informant, he went to the airport on information from this informant that this subject and the bags, or luggage contained the marijuana.” The appellant points out that Corporal Pitt knew absolutely nothing about the “credibility” of Detective Schwartz’s confidential informant in Tucson or about the “basis of knowledge” for that confidential informant’s conclusion. The appellant’s assertion is absolutely correct, but totally irrelevant on the issue of probable cause in Maryland. Because of the total dearth of information as to the “credibility” of that remote hearsay source or the “reliability” of his information and the total absence of any assurance that that source’s assertions were not “purely conclusory,” Corporal Pitt could not, of course, give any credit to that information. Corporal Pitt, however, was not called upon to credit that information.

Corporal Pitt had abundant independent reason to believe that the two yellow suitcases contained 18 bricks of marihuana: Detective Schwartz had seen them there. Detective Schwartz had opened both suitcases in Tucson, had counted out 31 bricks of marihuana, had removed 13 of the bricks, had allowed 18 bricks to remain in the two suitcases, and had then closed the cases up again. This was ⁶⁸⁹ the basis for Corporal Pitt’s ensuing probable cause. Whatever antecedent information Detective Schwartz may have had was simply his spur to action.

The information furnished by the confidential source may have instigated Detective Schwartz’s investigation in Tucson, but it was not an element in the accumulation of probable cause by Corporal Pitt in Maryland. Whatever bearing it may have had upon the legitimacy of Detective Schwartz’s actions, it did not bolster or erode the probative force of Detective Schwartz’s direct observations. The information coming from the confidential informant was a matter to which Corporal Pitt could be utterly indifferent. The antecedent tip, trustworthy or untrustworthy, was subsumed in and made redundant by the observed fact.

Corporal Pitt relied exclusively upon what Detective Schwartz saw. Corporal Pitt, for his part, was not called upon to sit in judgment on the constitutionality of the investigative conduct of the Arizona policeman. The absence of knowledge about the confidential informant does not, therefore, derogate one whit from Corporal Pitt’s probable cause. This situation is to be distinguished from that in which the primary hearsay source is a mere intermediate conduit for information from a more remote, secondary hearsay source.

Dawson v. State, 11 Md. App. 694, 701-702, n. 3 , 276 A. 2d 680 . In such cases, the trustworthiness of the more remote information is critical because it represents the hard kernel of probable cause. In the present case, by way of contrast, Detective Schwartz was not a conduit for more remote information but was, rather, the direct source of the damning data. He did not transmit probable cause, but, by his observations, developed intervening probable cause.

See United States v. Valen, 479 F. 2d 467 (3d Cir. 1973). “Fruit of the Poisonous Tree” Doctrine The same issue — the constitutional predicate for Detective Schwartz’s action in Tucson — may, however, come to us in another posture. The appellant apparently sought to have the suppression hearing not simply weigh the amplitude of probable cause but serve also as a “taint hearing.” We will so ⁶⁹⁰ consider it. In that second posture, however, the relevant question needs to be framed in different terms. The issue in a “taint hearing” is not whether adequate probable cause exists (that is virtually a condition precedent to a “taint hearing”), but rather one of whether the acknowledged probable cause does or does not represent the “fruit of the poisonous tree.” The appellant claims that the search of his suitcases in Tucson was unconstitutional.

He claims that when the knowledge thereby gained was passed on and was acted upon in Baltimore, there was an exploitation of the primary illegality. He ciaims, therefore, that the incriminating data in the mind of Corporal Pitt on the issue of probable cause was “the fruit of the poisonous tree.” Silverthorne Lumber Company v. United States, 251 U. S. 385 , 40 S. Ct. 182 , 64 L. Ed. 319 (1920); Nardone v. United States, 308 U. S. 338 , 60 S. Ct. 266 , 84 L. Ed. 307 (1939); Wong Sun v. United States, 371 U. S. 471 , 83 S. Ct. 407 , 9 L.Ed.2d 441 (1963). We have never resolved whether the “fruit of the poisonous tree” doctrine is or is not available on the issue of probable cause. In Everhart v. State, 20 Md. App. 71, 94 , 315 A. 2d 80 , we said: “We do not intimate what the answer might have been, had the appellant adequately raised at the suppression hearing, and adequately preserved for appellate review, an effort to look behind ‘the four corners of the affidavit’ in order to establish some primary taint, and then to apply the exclusionary rule to the ostensible fruits of that ostensible taint.

We recognize that the whole body of law grown up around the ‘fruits of the poisonous tree’ doctrine, on the one hand, and the discernible and almost tidal ¡retreat from the exclusionary rule by the Supreme (Court, on the other hand, are in essential collision. We will not try to predict how that collision may ultimately be'resolved.” Probable Cause for the Suitcase Search in Arizona Fortunately, we once again do not have to resolve that ⁶⁹¹ terribly troubled question, whereto powerful arguments can be made on either side. Significantly, the following critical information was also passed on from Detective Schwartz in Tucson to Corporal Pitt in Maryland: “As a result of this information he advised me that he went to the airport, observed the luggage, observed the subject, as I described, and smelled what he knew to be marijuana from his past experience. He advised me that he had been in law enforcement for approximately ten to twelve years.

And from his experience and his arrests had led to prior convictions for narcotic violations. As a result of the smelling of the suitcases and the information from the informant, in fact, did open the two pieces of luggage and did, in fact, observe thirty-one bricks of marijuana in the above suitcases.” Trained investigators are entitled to rely upon the sense of smell to establish probable cause, just as surely as they are entitled to rely upon the senses of sight, hearing, touch, or taste. People v. Bleile, 33 Cal. App. 3d 203 , 108 Cal.

Rptr. 682 , 685 (1973). We are satisfied that Detective Schwartz had probable cause to believe that the suitcases contained marihuana. Suitcases and the Carroll Doctrine The establishment of probable cause in Tucson, however, does not suffice to solve the problem of the legitimacy of the ensuing search. Continuing to focus in on the constitutionality of the Arizona search, we must determine whether probable cause to believe that a suitcase contains contraband may ever justify a warrantless search thereof.

Unlike the situation later prevailing in Baltimore, reliance may not conveniently be had upon the “search incident to a lawful arrest” exception to the warrant requirement. The suitcases, when they were searched in Tucson, were completely unattended by the appellant. They were not remotely within a search perimeter measured from his person under Chimel v. California, 395 U. S. 752 , 89 S. Ct. 2034 , 23 L.Ed.2d 685 (1969) — within his “lunge,” his ⁶⁹² “reach,” his “grasp,” within the area “that may fairly be deemed an extension of his person.” Furthermore, there was no arrest in Tucson. If a warrantless search is to be condoned, it must, therefore, find some supporting theory other than that of a “search incident.” The two poles between which we steer have long been fixed.

On the one hand, no amount of probable cause (even in the presence of exigency) will ever justify a warrantless intrusion into a fixed premises for the purpose of searching for evidence of crime. 2 This is the undisputed teaching of Agnello v. United States, 269 U. S. 20 , 46 S. Ct. 4 , 70 L. Ed. 145 (1925); Taylor v. United States, 286 U. S. 1 , 52 S. Ct. 466 , 76 L. Ed. 951 (1932); Johnson v. United States, 333 U. S. 10 , 68 S. Ct. 367 , 92 L. Ed. 436 (1948); Jones v. United States, 357 U. S. 493 , 78 S. Ct. 1253 , 2 L.Ed.2d 1514 (1958); Vale v. Louisiana, 399 U. S. 30 , 90 S. Ct. 1969 , 26 L.Ed.2d 409 (1970). As was said in Coolidge v. New Hampshire, 403 U. S. 443, 468 , 91 S. Ct. 2022, 2039 , 29 L.Ed.2d 564, 584 (1971): “Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.” On the other hand, it has been recognized since 1925 that there is “a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motorboat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” ⁶⁹³ Carroll v. United States, 267 U. S. 132, 153 , 45 S. Ct. 280 , 69 L. Ed. 543 . See also Husty v. United States, 282 U. S. 694 , 51 S. Ct. 240 , 75 L. Ed. 629 (1931); Scher v. United States, 305 U. S. 251 , 59 S. Ct. 174 , 83 L. Ed. 151 (1938); Brinegar v. United States, 338 U. S. 160 , 69 S. Ct. 1302 , 93 L. Ed. 1879 (1949); Dyke v. Taylor Implement Mfg.

Co., 391 U. S. 216 , 88 S. Ct. 1472 , 20 L.Ed.2d 538 (1968); Coolidge v. New Hampshire, supra; Cady v. Dombrowski, 413 U. S. 433 , 93 S. Ct. 2523 , 37 L.Ed.2d 706 (1973). “ [W]hat may be an unreasonable search of a house may be reasonable in the case of a motorcar.” Preston v. United States, 376 U. S. 364, 366-67 , 84 S. Ct. 881 , 11 L.Ed.2d 777 (1964). “Exigent circumstances” justify the warrantless search of an automobile, where there is probable cause, because the car is “movable” and because “the car’s contents may never be found again if a warrant must be obtained.” Chambers v. Maroney, supra, 399 U. S. at 51. “ [T]he opportunity to search is fleeting . . .” ibid. Between these two fixed points, where does a suitcase 3 lie? Even armed with probable cause and faced with exigent circumstances, what may a policeman do vis-a-vis a piece of luggage? Although the Carroll Doctrine has frequently been referred to by the Supreme Court as “the so-called automobile exception,” we are persuaded that its logic is more far-reaching.

The reasons of necessity which permit warrantless searches of automobiles and other vehicles, upon the combination of probable cause and exigent circumstances, apply with equal force to suitcases and other readily movable containers. This is particularly so when they are consigned to a carrier and are, therefore, literally in transit, but the logical extension is not limited to situations where a common carrier is involved. The ultimate justification arises out of the exigency presented by actual or imminent mobility on a case-by-case basis. ⁶⁹⁴ In Carroll , the Supreme Court based its decision, in large measure, on the historical example of warrantless seizures of contraband “goods in the course of transportation.” 267 U. S. at 149 . It reviewed in detail a number of early statutes and concluded that “contemporaneously with the adoption of the Fourth Amendment we find in the First Congress, and in the following Second and Fourth Congresses, a difference made as to the necessity for a search warrant between goods subject to forfeiture, when concealed in a dwelling house or similar place, and like goods in course of transportation and concealed in a movable vessel where they readily could be put out of reach of a search warrant.” 267 U. S. at 151 .

The language of Preston v. United States, supra, indicated that “automobiles” did not exhaust the category on the less restrictive side of the search and seizure dichotomy, “Common sense dictates, of course, that questions involving searches of motorcars or other things readily moved cannot be treated as identical to questions arising out of searches of fixed structures like houses.” 376 U. S. at 366 (emphasis supplied). Cooper v. California, 386 U. S. 58 , 87 S. Ct. 788 , 17 L.Ed.2d 730 (1967), intimated that an essential characteristic of the more restrictive side of the search and seizure dichotomy was the “fixed” nature of the property searched, in citing Preston for the proposition that because cars are “constantly movable” they may be searched with probable cause but without a warrant “although the result might be the opposite in a search of a home, a store, or other fixed piece of property.” 386 U. S. at 59 (emphasis supplied). The Supreme Court of California faced the question squarely in People v. McKinnon, 103 Cal. Rptr. 897 , 500 P. 2d 1097 (1972).

It posed the question, at 500 P. 2d 1103 : “In the case at bar we must determine whether the rationale of Chambers should be limited to searches of automobiles and similar self-propelled ‘vehicles’ such as trucks, trains, boats, or airplanes. Neither reason nor precedent compels such a narrow, mechanistic reading of Chambers and its predecessors.” ⁶⁹⁵ We find completely persuasive the answer then furnished, at 500 P. 2d 1104 : “Is a box or trunk consigned to a common carrier for shipment to a remote destination a ‘thing readily moved’ or a ‘fixed piece of property’? The answer, self-evidently, is the former. To be sure, such a box has neither wheels nor motive power; but these features of an automobile are legally relevant only insofar as they make it movable despite its dimensions.

A box, which is a fraction of the size and weight of an automobile, is movable without such appurtenances. It is also true that a box or trunk, as distinguished from an automobile, may serve the double purpose of both storing goods and packaging them for shipment. But whenever such a box is consigned to a common carrier, there can be no doubt that it is intended, in fact, to be moved. What is true of a box or trunk is true of all goods or chattels consigned to a common carrier for shipment.

As they are no less movable than an automobile, the reasons for the rule permitting a warrantless search of a vehicle upon probable cause are equally applicable to the search of such a chattel.” A similar result was reached by the United States Court of Appeals for the Third Circuit in United States v. Valen, 479 F. 2d 467 (1973). There, as here, two suitcases were searched in Tucson, Arizona, shortly before their flight east. They were found to contain marihuana. There, as here, the ultimate seizures were made in the east.

There the United States District Court for the Middle District of Pennsylvania overturned the conviction on the grounds that the warrantless search in Tucson was unconstitutional. In reversing that decision and reinstating the conviction, the Third Circuit reasoned that probable cause plus exigent circumstances did justify the warrantless search of the suitcases in Tucson: ⁶⁹⁶ “ [T]he government relies on the ‘exigent circumstances’ exception to the warrant requirement announced in Carroll v. United States . . .'and refined in Chambers v. Maroney . . . This exception to the warrant requirement, authorized for certain automobile searches, is premised on the theory that the mobility of the automobile presents a danger that contraband will move or disappear. Justice White put it succinctly: ‘But when there are exigent circumstances, and probable cause, then the search may be made without á warrant, reasonably.’ The ‘exigent circumstances’ exception is not a per se rule to be applied indiscriminately to every automobile containing contraband, nor should it be applied to every object that has the capacity for movement.

Rather, its application should depend upon an evaluation of attendant circumstances. At a very minimum there must be probable cause to make a search for contraband. ... A further consideration is the reasonable possibility of the agent’s loss of dominion and control over the object to be searched and the consequential loss of the contraband contained therein. . . . . . . [T]he government emphasizes the extremely high mobility factor of the suitcases confronting Agent Clements. They were due to leave Tucson by air within the hour.

They were destined for Scranton, Pennsylvania, with at least one plane change at New York. . . . Thus, it was reasonable for him to conclude that a very real possibility existed that the government could lose the contraband, important evidence of a possible violation of federal laws. . . . Under the totality of these circumstances, we hold that there were ‘exigent circumstances’ to make the search without the warrant.” At 470-471. In its legitimizing as well the warrantless seizure of the ⁶⁹⁷ suitcases in Scranton, after they had been placed in the trunk of the defendant’s automobile, the court made clear that the “exigent circumstances plus probable cause” rationale was not restricted to movables then consigned to a common carrier, a point left in doubt by the California Supreme Court in People v. McKinnon, supra: “Unlike the BNDD search in Arizona, the Scranton search is distinguishable from Clements’ search.

First, the suitcases must be viewed as no longer in the exclusive custody of the government at the time of the search. Although agents continued to observe the movement of the suitcases, Valen had asserted a possessory interest over them. Second, the suitcases were removed from the locked trunk of Valen’s automobile. The opening of the trunk, even though for the singular purpose of obtaining the suitcases, was a separate search; and we have concluded that this search is controlled by United States v. Menke, supra.

The order of the