White v. State

Ontavius Deshard White v. State, No. 0891 of the 2019 Term, Opinion by Moylan, J. HEADNOTES: ILLEGAL POSSESSION OF A FIREARM – SUPPRESSION HEARING – EXECUTION OF AN OUTSTANDING SEARCH WARRANT – THE APPELLANT WAS ARRESTED – THE SUPPRESSION HEARING RULINGS – THE CONTENTIONS – THE STANDARD OF REVIEW – THE THRESHOLD OF FOURTH AMENDMENT APPLICABILITY – STANDING TO OBJECT – THE MERITS OF THE FOURTH AMENDMENT – THE SPECIAL EXCEPTION OF ARIZONA V. GANT – A SHAKY PEDIGREE – THIS IS NOT A CARROLL DOCTRINE CASE – THE GEOGRAPHY OF THE SEARCH INCIDENT – THE CAR SEARCH IN THIS CASE – THE SANCTION, IF ANY, FOR A FOURTH AMENDMENT VIOLATION – INEVITABLE DISCOVERY -- INEVITABLE DISCOVERY IN THIS CASE -- “WHEN THE HURLY BURLY’S DONE” -- APPENDIX: ORGANIZING THE FOURTH AMENDMENT Circuit Court for Anne Arundel County Case No. C-02-CR-19-000370 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 0891 September Term, 2019 _____________________________________ ONTAVIUS DESHARD WHITE V. STATE OF MARYLAND Fader, C.J., Shaw Geter, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ. Opinion by Moylan, J. _____________________________________ Filed: October 1, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-10-01 17:06-04:00 Suzanne C. Johnson, Clerk To say that this case deals with a variety of Fourth Amendment issues does not do justice to the breadth and depth of the appeal before us. This omnibus appeal presents us not simply with three different Fourth Amendment problems.

Such a merely quantitative accumulation of issues would not be at all unusual. The particular combination of issues before us in this case, however, is one where each of the questions before us engages the gears of an entirely separate and distinct level or plane of Fourth Amendment inquiry. Those absolutely distinct levels or planes of inquiry are: I. The Coverage or Applicability of the Fourth Amendment II. The Merits or Substance of the Fourth Amendment III.

The Sanction, If Any, for a Fourth Amendment Violation Our tripartite inquiry herein touches, in turn, each of those distinct planes or levels of Fourth Amendment involvement. At the first of these levels, the very threshold of Fourth Amendment applicability, there must be 1) coverage of the place searched or thing seized, 2) coverage of the person of the searcher (state action), and 3) coverage of the person of the defendant under the circumstances of the case (standing to object). Absent such threshold applicability, the subsequent question of whether the Fourth Amendment merits might have been satisfied or might have been violated in some other world where the Fourth Amendment did apply would be absolutely irrelevant. At the second and more familiar of these dimensions or levels of presence, the actual merits, the ultimate substance, of the Fourth Amendment’s command that searches and seizures be reasonable, the territory is largely controlled by the centrality of the warrant requirement and its list of jealously guarded exceptions.

This is the home turf of most Fourth Amendment adjudication. The third and final level of Fourth Amendment inquiry is that of what sanction, if any, should be applied for a particular Fourth Amendment violation. Involved here are the familiar Exceptions to the Exclusionary Rule of 1) attenuation of taint, 2) independent source, and 3) inevitable discovery. All three of these fundamental levels of Fourth Amendment involvement are before us on the present appeal. “On such a full sea are we now afloat.”1 * * * For the three-dimensional Fourth Amendment voyage on which we now embark, our Odysseus will be the appellant, Ontavius Deshard White, who was indicted in the Circuit Court for Anne Arundel County, Maryland, and charged with several narcotics and firearms offenses.

After his pre-trial motion to suppress evidence was denied, he entered a not guilty plea on an agreed statement of facts to one count of illegal possession of a firearm by a disqualified person. Appellant was then sentenced to five years, without possibility of parole. On this timely appeal, the appellant asks: Did the lower court err in denying Appellant’s motion to suppress the fruits of a warrantless search of the vehicle that Appellant was driving? Holding that the suppression hearing court did so err, we shall reverse.

Execution Of An Outstanding Arrest Warrant 1 Shakespeare, Julius Caesar, Act 4, Scene 3. 2 The testimony at the suppression hearing was as follows. Officer Robert Padgett, an 11 year veteran of the Anne Arundel County Police Department who was then assigned to the Fugitive Apprehension Team, testified that he was detailed with locating and arresting appellant pursuant to an open arrest warrant on charges of armed carjacking, unlawful taking of a motor vehicle, and other related handgun offenses. On January 16, 2019, Officer Padgett began surveillance in the area of 412 Summer Wind Way in Glen Burnie, Maryland, when, at around 1:33 p.m., he saw an individual matching appellant’s physical description walk out of the apartment building and approach a silver Hyundai Elantra. Appellant walked to the vehicle, took a pair of shoes out of the trunk, and then walked back into the apartment building.

Officer Padgett checked the license on the Elantra and learned that it was a leased vehicle. Shortly thereafter, appellant, now wearing a black jacket, returned to the vehicle and proceeded to drive to the Glen Burnie Car Wash, located at 7985 Crain Highway in Glen Burnie. Officer Padgett continued his covert surveillance and saw appellant initially back the Elantra into a vacuum cleaning station. The officer then radioed police dispatch, and informed them that he followed an armed carjacking suspect to the car wash and needed back up units to respond.

The Appellant Was Arrested Meanwhile, appellant moved the Elantra into the third bay of the car wash. At around that same time, two other officers arrived on the scene and positioned themselves at either side of the bay. Appellant then was apprehended without incident and Officer Padgett positively identified him as the suspect wanted pursuant to the arrest warrant. 3 After appellant was handcuffed, Officer Padgett asked him about the Elantra, and appellant replied that it belonged to his girlfriend. However, Officer Padgett testified that he knew otherwise, stating, “at that point, I had already ran it.

I knew it was a leased vehicle, so I didn’t know if it was leased to her or not.” Upon further questioning by the court, Officer Padgett testified that the Elantra belonged to “All Car Leasing,” and that one “Roxanne Douglas” was the lessee. He also confirmed that the lease had expired one day prior to this stop. Officer Padgett continued that “at that point, we just did a search based off evidence related to the armed carjacking.” The officer confirmed that appellant stood about ten feet behind the vehicle, within the car wash bay, while the search was conducted. Officer Padgett then explained that the Elantra would need to be towed, testifying as follows: Q. Okay.

And what, if anything, was your plans for this vehicle? A. At that point, being where it was, we would try to verify a couple things, but at that point, it was -- it was going to be -- have to be removed from that car wash bay because we were blocking business for this car wash. Q. Do you know whether or not you were planning on towing it? [DEFENSE COUNSEL]: Objection. THE COURT: Overruled.

THE WITNESS: Once we verified a couple of things and realized that the vehicle was supposed to be returned the day before, we -- a tow was inevitable, correct. BY [PROSECUTOR]: Q. So it was a leased vehicle? 4 A. Yes, sir. Q. It was a day late? A. Yes, sir.

Q. And your plan was to tow it? A. Yes, sir. Officer Padgett was then asked about police procedures with respect to towing the vehicle under the circumstances, and appellant objected. At the court’s behest, the prosecutor explained that “it is partially my argument that this leads to basically an inevitable discovery argument based on an inventory search, based on they were going to tow the vehicle anyway.” The court overruled the objection and Officer Padgett testified as follows: THE WITNESS: So the procedure for the tow is that we inventory any valuables.

So we would look through, pretty much, the entire vehicle just to make sure that nothing of value needed to be reported, and to just list the items on the actual Tow Inventory Report. BY [PROSECUTOR]: Q. And if Mr. White had owned the vehicle, would you have towed it? A. If he had owned the vehicle, there’s procedures that we have to take. So if he was willing to give it to somebody, and that person had a legal driver’s license and everything like that, and they could get there within a reasonable amount of time, then yes, we would.

If he provided somebody that couldn’t get there within a reasonable amount of time or didn’t have a driver’s license, then we would have to tow it ‘cause we can’t waste time at the car wash. It’s a business. Q. But after checking the records, it was your understanding Mr. White did not own it? A. He did not own it.

No, sir. 5 Q. And this was a leased vehicle? A. Yes, sir. Officer Padgett and another officer then began to search the Elantra. They found the black jacket appellant was seen wearing when he left his apartment building lying across the front passenger seat.

When lifted off the seat, the police found a black handgun laying on top of a blue bag adorned with a Dallas Cowboy’s logo. Direct examination then concluded as follows: Q. And you said you were partially searching the vehicle because of the crime that you were arresting him for? A. Yes, sir. Q. And why would -- what, if anything, made you believe that crimes of -- or fruits of that crime would be in that vehicle?

A. So we had understood there was an armed carjacking where a black handgun was used, and it had never been recovered at that point. On cross-examination, Officer Padgett testified that he knew that the original charges against appellant for armed carjacking occurred on or around December 29, 2018, or approximately 18 days prior to the arrest at the car wash, at an Extended Stay Hotel located ten miles away in Linthicum, Maryland. The officer also agreed that the original charges only indicated that a “handgun” was used in the crime and simply referred to “a vehicle,” as opposed to any specific make or model.2 2 The arrest warrant, issued on January 11, 2019 and included with the record on appeal, refers to an incident involving appellant and two alleged victims near the Extended Stay Hotel and Hoyts Movie Theater, located on International Drive in Linthicum, Maryland, at around 11:18 p.m. on December 29, 2018. According to the application for statement of charges, it was alleged that appellant robbed these 6 In addition, Officer Padgett testified that he saw appellant pull the Elantra into a car wash bay, used for self-washes, after parking momentarily at the vacuum station.

Appellant also was located outside the vehicle, approximately ten feet away, when he was placed in handcuffs and arrested. The officer agreed that a pat-down of appellant’s person did not uncover any weapons or contraband on his person. Following this testimony, the court heard argument concerning: (1) whether the search was lawful as a search incident to a valid arrest; (2) whether there was reasonable articulable suspicion to believe fruits of the original armed carjacking were in this vehicle; and/or (3) whether the search could be upheld as an inventory search under the inevitable discovery doctrine. Prior to hearing from appellant, the court inquired whether appellant had standing to challenge the search.

Appellant maintained that he had standing as the sole occupant and operator of the vehicle with apparent authority to drive it under the circumstances. Appellant also challenged the State’s rationales for the search of the vehicle, noting that: (1) appellant stood ten feet away from the car in handcuffs when it was searched; (2) appellant was arrested 18 days after the armed carjacking; and, (3) the police could have called appellant’s girlfriend to the scene to retrieve the car or simply moved it out of the car wash bay without inventorying its contents. The Suppression Hearing Rulings After hearing these arguments, the court denied the motion to suppress, finding first that appellant did not have standing to challenge the search. The court noted that appellant individuals of approximately cash, credit cards, clothing, and, at least temporarily, their “vehicle,” using a “dark-colored pistol” or “handgun.” 7 was not the lessee of the Elantra and that, even if he had been, the lease had expired.

As will be discussed more fully infra, the court essentially reached its conclusion on the basis of proprietary standing and did not go on to analyze the more nuanced question of derivative standing. The court then turned to a search incident rationale, observing that “Arizona v. Gant [ 556 U.S. 332 (2009)] seriously changed the landscape of 4th Amendment jurisprudence with regard to car stops.” After analyzing the history of the relevant law, the court disagreed that the public safety rationale supported the search incident given that appellant was outside the vehicle and in handcuffs, and further, given the temporal and spatial distinctions between the underlying offense that formed the basis for the arrest warrant, i.e., the armed carjacking 18 days earlier some 20 miles away from the scene of the arrest. Nevertheless, the court agreed that the search could be upheld as an inventory search under the Inevitable Discovery doctrine. Observing that the car was stopped in a car wash bay and was being operated on an expired lease, the court found that this “militated in favor of towing the vehicle.” The court concluded as follows: So to summarize, this Court finds that there are, sort of, three broad brush strokes that were kind of presented -- well, two were presented to the Court today.

One, they sort of what I'll characterize as the Belton/Gant analysis, or search incident to the arrest analysis. And I find on that ground the Defendant prevails, but you only need one additional ground -- or one ground to deny a motion. And this Court finds that the standing issue is really what controls. But even if that were not present, the Court would also find that, based on the circumstances, there was not cause by law enforcement.

The inevitable discovery doctrine also applies. And for both of those reasons, one and three if you will, the Court is denying the Defendant’s motion to suppress the evidence. (Emphasis supplied.) 8 The Contentions In a remarkable tour-de-force of condensation, the appellant raises a single and almost taciturn contention: THE LOWER COURT ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS THE FRUITS OF A WARRANTLESS SEARCH OF A VEHICLE WHERE APPELLANT WAS THE SOLE OCCUPANT AND DRIVER. There is a lot of content jammed into a small assertion.

That unilluminating contention embraces essentially the entire universe of the Fourth Amendment. In that deceptively simple but encyclopedic contention, the appellant presents us with a veritable fusillade of academic teasers. That simple assertion contains a labyrinth. The appellant might as readily have included half a dozen reasons why, in his judgment, the judge made a mistake in an all-embracing contention that the judge “made a mistake.” Indeed, in arguing the contention, the appellant does expand outward into a variegated argument more reflective of the breadth of the Fourth Amendment issues confronting us on this appeal.

The State, by contrast, in its listing of its perception of the contentions, more accurately captures the broad sweep of what is before us, three issues touching respectively 1) the threshold applicability of the Fourth Amendment, 2) the actual merits or substance of the Fourth Amendment, and 3) the sanction, if any, for a Fourth Amendment violation. 1. WHITE DID NOT HAVE STANDING TO CHALLENGE THE SEARCH OF THE CAR HE WAS DRIVING. 2. THERE WAS REASONABLE SUSPICION TO BELIEVE THAT A SEARCH OF THE VEHICLE WOULD REVEAL EVIDENCE OF ARMED CARJACKING. 9 3. THE GUN WOULD HAVE INEVITABLY BEEN DISCOVERED WHEN THE CAR WAS TOWED FROM THE CAR WASH BAY.

(Emphasis supplied.) We will follow the State’s outline. The Standard of Review In considering motions to suppress evidence under the Fourth Amendment, our review is “limited to the record developed at the suppression hearing.” Pacheco v. State, 465 Md. 311, 319-20 , 214 A.3d 505 (2019) (quoting Moats v. State, 455 Md. 682, 694 , 168 A.3d 952 (2017)). The record is assessed “in the light most favorable to the party who prevails on the issue that the defendant raises in the motion to suppress.”3 Norman v. State, 3 It is a standard provision of appellate review, so familiar as to be almost a cliché, that the reviewing court will view the facts in the manner most favorable to the prevailing party. In this case, that raises an interesting question which, fortunately, we do not have to resolve.

Varriale v. State, 444 Md. 400, 410 , 119 A.3d 830 (2015) speaks of assessing the record “in the light most favorable to the party who prevails on the issue that the defendant raises in the motion to suppress.” In this case, on the ultimate issue of the suppression of the evidence, the State was the prevailing party. Involved in that ultimate resolution, however, were the resolutions of three lesser included questions. On the threshold sub-issue of standing, the State was also the prevailing party. On the final sub-issue of Inevitable Discovery, the State was once again the prevailing party.

On the intermediate sub-issue of Fourth Amendment satisfaction, involving the special Arizona v. Gant exception to the warrant requirement, however, the appellant was the prevailing party. We are now about to embark on a review of all four of these resolutions by the suppression court. On the intermediate issue of the special Arizona v. Gant exception to the warrant requirement, should our assessment of the facts be in the light most favorable to the appellant as the prevailing party on that particular issue or in the light most favorable to the State as the prevailing party on the ultimate suppression issue? Fortunately, the resolution of that intermediate issue is so open and shut that it won’t make a bit of 10 452 Md. 373, 386 , 156 A.3d 940 cert. denied, 138 S. Ct. 174 (2017).

Further, although the motion court’s factual findings are accepted unless clearly erroneous, we review de novo the “court’s application of the law to its findings of fact.” Pacheco, 465 Md. at 319 (citation omitted). I. The Threshold Of Fourth Amendment Applicability The appellant’s initial challenge is to the ruling by the suppression hearing court that the appellant lacked standing to object. Properly to understand this challenge, we need to pause for a moment and look at the larger genus of which standing is but a species. In resolving the standing question, for instance, we are not at all interested in the Fourth Amendment merits.

As an aspect of the threshold issue of Fourth Amendment applicability, standing is only concerned with the entitlement of the appellant to litigate those merits, not with the ultimate merits themselves. A solid grasp of this fundamental difference between applicability and satisfaction is the necessary analytic starting point. William W. Greenhalgh, The Fourth Amendment Handbook, (4th Ed. 2019), Introduction, p.1, introduces a study of the Fourth Amendment with the concept: The key to any true understanding is an appreciation of the vast conceptual difference between the issue of Fourth Amendment applicability and the very different issue of Fourth Amendment compliance. When dealing with the latter, our judges are the keepers of the sacred flame, the enforcers of the values written into the Bill of Rights by the framers.

The Fourth Amendment demands of law enforcement good things like warrants, probable cause, exigency, and police good faith. They all, however, are but the sub-criteria by which we measure something else: reasonableness. For difference. We need not worry what the tiebreaker is when there is no tie to break.

It remains, however, an interesting question. 11 Fourth Amendment purposes, the police have to be reasonable when they search and when they seize because the Fourth Amendment demands it of them. The “flip-side” of the same logic, however, is that when the Fourth Amendment does not apply, the commandment to be reasonable, which exists only by virtue of the Fourth Amendment, does not apply either. (Emphasis supplied.) In Gilbert & Moylan, Maryland Criminal Law: Practice and Procedure, (1983), Ch. 25 “The Threshold Question of Fourth Amendment Applicability,” p. 280, the authors advise: Our mental checklist as we approach an arguable Fourth Amendment problem should always alert us to ask two elemental questions: ` 1) Is it applicable? 2) Has it been satisfied? Inserted between the two questions should come the clear direction, “(DO NOT, REPEAT, DO NOT, GO ON TO QUESTION NO. 2 UNLESS THE ANSWER TO QUESTION NO. 1 IS ‘YES’)”.

There is a profound difference in character between the issues of applicability and compliance… (Emphasis supplied.) See also Moylan, “The Fourth Amendment Inapplicable v. The Fourth Amendment Satisfied: The Neglected Threshold of ‘So What?’”, 76 So. Ill. U.L.Rev. 75 (1977). Indeed, the rules and standards for litigating an issue of Fourth Amendment applicability and an issue of Fourth Amendment satisfaction diverge widely from each other.

As long as the State makes a timely challenge in the first instance, the burden is clearly cast on the defendant to prove Fourth Amendment applicability in all of its manifestations. Before he may even litigate the merits, the burden is allocated to the defendant to prove that the Fourth Amendment actually covers the place that was the situs 12 of the search. Hestor v. United States, 265 U.S. 57 , 44 S.Ct. 445 , 68 L.Ed. 898 (1924); Oliver v. United States, 466 U.S. 170 , 104 S.Ct. 1735 , 80 L.Ed.2d 214 (1984). Similarly, the burden is cast on the defendant to prove that the Fourth Amendment covers the person of the searcher (state action).

Burdeau v. McDowell, 256 U.S. 465 , 41 S.Ct. 574 , 65 L.Ed. 1048 (1921); Colorado v. Connelly, 475 U.S. 1116 , 106 S.Ct. 1629 , 90 L.Ed.2d 177 (1986). When challenged, the defendant must also establish the Fourth Amendment coverage of himself under the circumstances, to wit, his standing to litigate the Fourth Amendment merits. Cecil Jones v. United States, 362 U.S. 257 , 80 S.Ct. 725 , 4 L.Ed.2d 697 (1960); Minnesota v. Olson, 495 U.S. 91 , 110 S.Ct. 1684 , 109 L.Ed.2d 85 (1990); Minnesota v. Carter, 525 U.S. 83 , 119 S.Ct. 469 , 142 L.Ed.2d 373 (1998). In resolving an applicability issue, moreover, we are interested in a historic fact, objectively viewed.

Was the place covered? Was the person of the searcher covered? Was the person of the defendant covered under the circumstances of the case, to wit, did the defendant have standing to object? In resolving a Fourth Amendment satisfaction issue, on the other hand, we are frequently looking not at the historic fact per se.

We are looking, rather, at the evidence from the subjective point of view of the police officer. How did the evidence appear to the officer? On the Fourth Amendment merits, we are generally measuring the reasonableness of the police behavior. United States v. Leon, 468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984), and the other Good Faith Exception cases illustrate vividly the frequent necessity, when dealing with the Fourth Amendment merits, of shifting from the objective focus to the subjective focus and of shifting from the concern with historic fact to concern from the perspective of 13 the reasonable police officer.

When assessing the search warrant itself, for instance, we measure objectively such historic facts as probable cause, nexus, and adequacy of description. When dealing, however, not with the warrant per se but with the reasonableness of the officer who served the warrant, our focus shifts from the objective to the subjective and our concern is not with historic fact of whether the warrant was good or bad but with the perspective of the officer who executed it. Did he behave reasonably on the basis of how things appeared to him? Standing to Object The first issue before us in this case is one of threshold applicability.

It is whether the appellant had standing to object to the search of a borrowed automobile that he is driving at the time he was stopped by police. Standing is the “threshold question of the entitlement to litigate the merits of the search and seizure.” Bates v. State, 64 Md. App. 279, 282 , 494 A.2d 976 (1985). It is “exclusively a threshold question of applicability, concerned only with the coverage by the Fourth Amendment of the defendant who seeks to raise a Fourth Amendment challenge.” State v. Savage, 170 Md. App. 149, 174 , 906 A.2d 1054 (2006). The question in every case of standing “depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.” Rakas v. Illinois, 439 U.S. 128, 143 , 99 S.Ct. 421 , 58 L.Ed.2d (1978) (addressing the Fourth Amendment rights of passengers in vehicles).

Both parties direct our attention to Byrd v. United States, ___ U.S. __, 138 S.Ct. 1518 , 200 L.Ed.2d 805 (2018). In that case, Byrd was stopped outside Harrisburg, 14 Pennsylvania by Pennsylvania State Troopers while driving a vehicle rented in another’s name. Byrd, 138 S.Ct. at 1524 . After learning that Byrd was not listed on the rental agreement as an authorized driver, that he had prior drug and weapons convictions, and that Byrd admitted he had a marijuana cigarette in the vehicle at the time, the troopers searched the rented vehicle and discovered body armor and 49 bricks of heroin in the trunk.

Id. at 1525 . The lower courts denied Byrd’s motion to suppress the evidence, concluding that he lacked a reasonable expectation of privacy in the car. Id. After citing general principles on standing, id. at 1526-27 , the Court observed: One who owns and possesses a car, like one who owns and possesses a house, almost always has a reasonable expectation of privacy in it.

More difficult to define and delineate are the legitimate expectations of privacy of others. On the one hand, as noted above, it is by now well established that a person need not always have a recognized common-law property interest in the place searched to be able to claim a reasonable expectation of privacy in it. On the other hand, it is also clear that legitimate presence on the premises of the place searched, standing alone, is not enough to accord a reasonable expectation of privacy, because it “creates too broad a gauge for measurement of Fourth Amendment rights.” (Emphasis supplied.) 138 S. Ct. at 1527 (quoting Rakas, 439 U.S. at 142, 148 ). The Court recognized that it had “not set forth a single metric or exhaustive list of considerations to resolve the circumstances in which a person can be said to have a reasonable expectation of privacy[,]” id., but explained that legitimate expectations of privacy are derived by either “concepts of real or personal property law” or “to 15 understandings that are recognized and permitted by society.” Id.

The Court then decided which of these two principles applied to the case at hand: The two concepts in cases like this one are often linked. “One of the main rights attaching to property is the right to exclude others,” and, in the main, “one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude.” Ibid. (citing 2 W. Blackstone, Commentaries on the Laws of England, ch. 1). This general property-based concept guides resolution of this case. (Emphasis supplied.) Byrd, 138 S. Ct. at 1527 .

Summarizing the arguments before it, the Government sought to advance the theory that only authorized drivers of rented vehicles had a legitimate expectation of privacy, while Byrd wanted standing. The Court observed that the Government’s rule amounted to a misreading of the pertinent law established in Rakas, supra: The Court in Rakas did not hold that passengers cannot have an expectation of privacy in automobiles. To the contrary, the Court disclaimed any intent to hold “that a passenger lawfully in an automobile may not invoke the exclusionary rule and challenge a search of that vehicle unless he happens to own or have a possessory interest in it.” 439 U.S., at 150, n. 17 , 99 S.Ct. 421 (internal quotation marks omitted). The Court instead rejected the argument that legitimate presence alone was sufficient to assert a Fourth Amendment interest, which was fatal to the petitioners’ case there because they had “claimed only that they were ‘legitimately on [the] premises' and did not claim that they had any legitimate expectation of privacy in the areas of the car which were searched.” Ibid.

(Emphasis supplied.) Byrd, 138 S. Ct. at 1528 . Furthermore, unlike the passengers in Rakas, supra, Byrd, like the case before us now, involved a driver and sole occupant of a rented vehicle. Byrd, 138 S.Ct. at 1528 . Noting the distinctions the Court had made in cases involving automobiles, including 16 between passengers and those in exclusive control of the vehicle, see Rakas, 439 U.S. at 154 (Powell, J., concurring), the Court explained: The Court sees no reason why the expectation of privacy that comes from lawful possession and control and the attendant right to exclude would differ depending on whether the car in question is rented or privately owned by someone other than the person in current possession of it, much as it did not seem to matter whether the friend of the defendant in [Jones v. United States, 362 U.S. 257, 267 (1960), overruled by United States v. Salvucci, 448 U.S. 83 (1980)] owned or leased the apartment he permitted the defendant to use in his absence.

Both would have the expectation of privacy that comes with the right to exclude. Indeed, the Government conceded at oral argument that an unauthorized driver in sole possession of a rental car would be permitted to exclude third parties from it, such as a carjacker. (Emphasis supplied.) Byrd, 138 S. Ct. at 1528-29 . The Court then dispensed with the Government’s argument that Byrd was operating the vehicle in violation of contract principles: Putting the Government’s misreading of the contract aside, there may be countless innocuous reasons why an unauthorized driver might get behind the wheel of a rental car and drive it -- perhaps the renter is drowsy or inebriated and the two think it safer for the friend to drive them to their destination.

True, this constitutes a breach of the rental agreement, and perhaps a serious one, but the Government fails to explain what bearing this breach of contract, standing alone, has on expectations of privacy in the car. Stated in different terms, for Fourth Amendment purposes there is no meaningful difference between the authorized-driver provision and the other provisions the Government agrees do not eliminate an expectation of privacy, all of which concern risk allocation between private parties -- violators might pay additional fees, lose insurance coverage, or assume liability for damage resulting from the breach. But that risk allocation has little to do with whether one would have a reasonable expectation of privacy in the rental car if, for example, he or she otherwise has lawful possession of and control over the car. (Emphasis supplied.) Byrd, 138 S.Ct. at 1529 . 17 Indeed, the “central inquiry” concerned Byrd’s lawful possession of the vehicle.

Byrd, 138 S.Ct. at 1529 . Recognizing that a different analysis may be required in the case of a hypothetical car thief, an issue not properly before the Court in any event, id., at 1529- 30, and that the ultimate issue to be decided by the lower court on remand was not jurisdictional, but rather, whether there was probable cause to support the search, Id. at 1530-31 , the Court concluded: Though new, the fact pattern here continues a well-traveled path in this Court’s Fourth Amendment jurisprudence. Those cases support the proposition, and the Court now holds, that the mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy. The Court leaves for remand two of the Government’s arguments: that one who intentionally uses a third party to procure a rental car by a fraudulent scheme for the purpose of committing a crime is no better situated than a car thief; and that probable cause justified the search in any event.

The Court of Appeals has discretion as to the order in which these questions are best addressed. (Emphasis supplied.) Byrd, 138 S.Ct. at 1531 . The evidence in this case established that the Elantra was leased by Roxanne Douglas, the appellant’s girlfriend, from All Car Leasing, and that that lease had expired by one day. Roxanne Douglas had loaned the car to the appellant.

Appellant was the sole occupant and driver of the vehicle when it left the apartment building and was stopped inside a car wash bay at the Glen Burnie Car Wash. Although he was not listed on the leasing agreement, and although that contract had expired, applying Byrd, supra, we are persuaded that appellant had a legitimate expectation of privacy in the vehicle. For that 18 reason, we conclude that the motion court erred in concluding that appellant did not have standing to challenge the search. Thus, the Fourth Amendment did apply to the appellant as it conferred on him the entitlement to object to the search of the borrowed car he was driving at the time it was stopped.

The fact that the lender, in turn, had leased the car from a rental agency did not compromise the appellant’s Fourth Amendment protection in the borrowed car. The suppression hearing looked too narrowly at proprietary standing alone and did not go on to consider derivative standing. The entitlement of the appellant to litigate the Fourth Amendment merits made it appropriate for the suppression hearing to go on and litigate those Fourth Amendment merits that were properly raised.

II

The Merits of the Fourth Amendment By its very terms, the Fourth Amendment confers upon “the people” the right to be “secure… from unreasonable searches and seizures.” The core of that protection lies in the adjective “reasonable.” The commandment to government is that it (the State, the police) behave reasonably when it searches and when it seizes. In implementing that right, the concept of reasonableness has evolved over two and one-half centuries into what has been conveniently labelled as “The Centrality of the Warrant Requirement and Its List of Jealously Guarded Exceptions.” The articulation of that concept may be found in Coolidge v. New Hampshire, 403 U.S. 443, 454 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971): Thus the most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, 19 are per se unreasonable under the Fourth Amendment-- subject only to a few specifically established and well delineated exceptions. (Emphasis supplied.) See also Katz v. United States, 359 U.S. 347, 357 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967).4 The appellant in this case was, to be sure, arrested on the basis of a valid outstanding arrest warrant. The arrest warrant, however, based on a crime that had occurred 10 miles away and 18 days earlier, did not authorize a search of the Elantra.

Faulkner v. State, 156 Md.App. 615, 642 , 847 A.2d 1216 (2004)(“[A]n arrest warrant cannot be substituted for a search warrant.”) Accordingly, the burden devolved upon the State to show that the warrantless search of the Elantra was reasonable pursuant to one of the jealously guarded exceptions to the warrant requirement. That list of well-delineated exceptions is a familiar one. It includes: 1. Search Incident To Lawful Arrest.

Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969). 2. The Carroll Doctrine or Automobile Exception. Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42 , 90 S.Ct. 1975 , 26 L.Ed.2d 419 (1970); New York v. Class, 475 U.S. 106 , 106 S.Ct. 960 , 89 L.Ed.2d 81 (1986). See also Moylan, “The Automobile Exception: What It 4 Essentially, most of the exceptions to the warrant requirement are responses to some form of exigency that makes it unfeasible, if not impossible, for the police to obtain a warrant before searching.

Might it be possible to reduce the entire package to the simple commandment, “YOU ALWAYS HAVE TO GET A WARRANT—unless you can’t”? 20 Is and What It Is Not—a Rationale in Search of a Clearer Label,” 27 Mercer L.Rev. 987 (1976). 3. Hot Pursuit and Emergency Circumstances generally. Warden v. Hayden, 387 U.S. 294 , 87 S.Ct. 1642 , 18 L.Ed.2d 782 (1967). 4. Stop and Frisk.

Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed. 1889 (1968). 5. Plain View Doctrine. Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971); Arizona v. Hicks, 480 U.S. 321 , 107 S.Ct. 1149 , 94 L.Ed.2d 347 (1987). 6. Consent.

Schneckloth v. Bustamonte, 412 U.S. 218 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973); Illinois v. Rodriguez, 497 U.S. 177 , 110 S.Ct. 2793 , 111 L.Ed.2d 148 (1990). The Special Exception Of Arizona v. Gant In 2009, however, there was added to the list of exceptions to the warrant requirement an arguably additional exception that is difficult to characterize. 7. Special Exception of Arizona v. Gant To our chagrin, this is the exception relied upon by the State in this case. Arizona v. Gant is a confusing case.

Litigants are unsure whether simply to deal with it ad hoc or to attempt to fit it into a pre-existing and larger totality. This is a natural confusion because the Arizona v. Gant opinion concludes with two separate and very different rationales. One of them fits neatly into a pre-existing and larger totality—Search Incident to Lawful Arrest. The other