Whitman v. State

Moore, J., delivered the opinion of the Court. The primary question on this appeal is whether appellant, Dannie Lee Whitman, who had been the subject of an arrest without probable cause, thereafter consented voluntarily to a search of his truck in which was found an illicit cargo of 9,156 cartons of cigarettes, in transit from North Carolina to New York. The appeal was taken from a judgment of conviction upon a criminal information in the Circuit Court for Somerset County charging appellant with illegally transporting cigarettes without the required Maryland cigarette stamps and with possession of unstamped or improperly stamped cigarettes. After the denial of his motion for suppression of the contraband, the court (Duer, J. presiding without a jury) found appellant guilty of both counts and sentenced him to a fine of $15,000 plus court costs.

Concurrent one year prison terms were suspended. The record discloses that appellant, age 23, was transporting the cigarettes in a red, six-wheel truck, 1974 model, with a long aluminum body, north of the Chesapeake ⁴³⁰ Bay Bridge Tunnel late on the night of December 11, 1973. Unknown to Mr. Whitman, a police informant was following him. Telephone calls were made by the informant to Corporal Thomas M. Windsor of the Maryland State Police at 11:58 p.m. on December 10 and thereafter at 12:50 and 1:15 a.m. on December 11.

Trooper Windsor in turn relayed this information to State troopers on the Eastern Shore of Maryland, alerting them to be on the lookout for the vehicle. Trooper Franklin R. Evans of the Maryland State Police in Worcester County had appellant under surveillance and ultimately stopped him in Somerset County, just north of the Worcester County line at approximately 1:30 a.m. He was joined there by Trooper P. L. Thomas. Appellant was placed under arrest by Trooper Evans: “I advised him we had reliable information he was hauling untaxed cigarettes and placed him under arrest, and read the Miranda warnings to him.” The trooper asked appellant’s consent to a search of the vehicle and appellant refused.

The truck was then driven by Trooper Thomas to the State Roads Barn in Somerset County. Appellant was transported to the Barn in the police cruiser by Trooper Evans. Trooper Milton J. Hall, a criminal investigator for the Maryland State Police was contacted to assist in the investigation and assistant State’s Attorney Widdowson of Somerset County was also summoned. Upon the arrival of Trooper Hall at the Barn, it was ascertained that the vehicle was registered to Whitman Furniture Company of Coats, North Carolina, and appellant was advised that he had the right to give permission to open it.

As to his response, Trooper Evans testified: “A. He kept saying no, so we told him that we were going to open the vehicle and we were going to get a search warrant. Q. You told him you were going to get a search warrant? A. We started the process to obtain a search warrant. ⁴³¹ Q. You started the process? A. Yes.

Q. And what was that? A. We were in the process of typing it up and getting the Judge — in fact, the Judge did come to the barn. 1 In between time, the defendant gave us permission. The key to the lock was on the key ring of the vehicle. The defendant opened the rear door and we examined the cargo.

Q. The defendant himself did open the truck for you? A. He unlocked the lock, yes, sir. 2 Q. Do you know about what time it was that he gave you consent to open up the truck? A. I would say about an hour later, hour and a half later. I can’t swear for sure exactly what time.” Trooper Evans admitted on cross-examination: “I might have said we will go in the truck with or without your consent, so you might as well give it...

I advised him what the law was, that we could legally go in there with or without his consent. I believe that’s my wording.” (Emphasis added.) According to Trooper Evans, appellant then stated: “You can go ahead and search it.” Trooper Evans had requested appellant to unlock his truck on two prior occasions and had been refused. Trooper Hall, who appears to have had the principal role in the investigation at the State Roads Barn, testified that he also twice requested permission to search the truck and added: “I started the search warrant and typed a few ⁴³² sentences and advised Mr. Whitman it would be a lot less time consumed if we could receive a consent to search. And at the time, after I typed several sentences, he acknowledged that he would permit us to search the vehicle.

Q. Do you know what time that acknowledgment of his came forth? A. I believe it was approximately 2:30. Q. What time was your time of arrival at the barn? A. Shortly after 2:00.

I’m not certain. THE COURT: Was Mr. Widdowson there — THE WITNESS: Yes, sir. THE COURT: — when he gave you consent to search? THE WITNESS: Mr. Widdowson was himself interrogating the defendant.

BY MR. HORSEY: Q. You mean the Assistant State’s Attorney? A. Yes, sir.” On cross-examination Trooper Hall stated that appellant gave his consent to the search after the second request and that the consent came after Trooper Hall in effect stated: “We are getting a search warrant. It would be a lot less time-consuming if you just go ahead and consent.

Q. And he said? A. Yes, sir.” Taking the stand in support of his motion to suppress, appellant recalled Trooper Evans’ stating that the troopers would open the truck whether he consented or not. He described the effect of this statement upon him in the following manner: “A. Well, I figured if they were going to open it anyway, I might as .well. ⁴³³ Q. Did you say that before you signed this? A. Yes, sir.

Q. Did that have any bearing on the fact that you signed this? A. Yes, sir. Q. What bearing? A. Well, like I just said, if I was already under arrest anyway, they are going to open it anyway so save a little time.

Q. Did you know you didn’t have to sign that? A. Yes, sir. Q. You did know that? A. Uh-huh.” The paper to which the appellant affixed his signature was a form entitled “Consent to Search and Seize.” It was executed by him on December 11, 1973 at 2:35 a.m. and contained the following paragraphs after describing the vehicle and granting permission to search it: “I fully understand that I have a constitutional right to refuse to consent to this search and that the items seized may be used against me in a court trial.

I further understand that I have a constitutional right to withdraw my consent at any time and require any further search to be executed on the strength of a legal search warrant. “This consent has been given by me to the above named officer knowingly and voluntarily and absent of threats, promises or inducements of any kind with the full knowledge that I have waived my constitutional right to refuse this consent.” In his denial of the motion to suppress, the trial court made the following ruling from the bench: “I think he made a voluntary consent. It’s true that he was there perhaps an hour. He tells me that the police outside of asking him to consent to open the truck, apparently treated him all right. ⁴³⁴ “This man was not treated as a hardened criminal. He wasn’t handcuffed.

He could move around, smoke if he wanted to, and I suspect he did just about as much as any troopers down there. “He signed this consent and he knew he consented because he thought it would save time. He had a right to consent and he did it. I think it was voluntary. “On those grounds, I overrule your motion to suppress the evidence.” The court did not advert to the question of the legality vel non of appellant’s arrest by Trooper Evans. On this point, however, the record is abundantly clear that the familiar requirements of Aguilar v. Texas, 378 U. S. 108 (1964) — i.e., the basis of knowledge test and the credibility or reliability test — were not satisfied.

Trooper Windsor, to whom the informant made the three telephone calls, could provide no testimony concerning the informant’s basis of knowledge and could only testify that he had had two prior calls from the informant some six months before. In this condition of the record the State concedes in its brief that the evidence “does not sufficiently establish the underlying circumstances for the credibility or reliability of the informant so that the lower court could determine that the police had probable cause to believe that the appellant had committed or was committing a felony.” The State contends., however, that even if the arrest was illegal it does not follow that the search was unlawful for the reason that a subsequent search does not become unlawful and the evidence obtained thereby inadmissible if the accused voluntarily consented to the search, placing reliance upon Anderson v. State, 237 Md. 45 , 205 A. 2d 281 (1965) and Lopata v. State, 18 Md. App. 451 , 307 A. 2d 721 (1973). The principal question before us with respect to the denial by the lower court of the motion to suppress the evidence is whether appellant’s consent to the search of the truck was voluntary. Appellant has also challenged the sufficiency of ⁴³⁵ the evidence to sustain his conviction of illegal transportation of untaxed cigarettes.

I Preliminarily, with respect to the scope of our review, we observe that in the presence of alleged infringements of constitutionally protected rights, we are required to examine the entire record and to make an independent, reflective constitutional judgment on the facts. Davis v. North Carolina, 384 U. S. 737, 741 (1966); Walker v. State, 12 Md. App. 684 , 280 A. 2d 260 (1971). As Judge Moylan stated for this Court in Walker ( 12 Md. App. at 695 ): “What we mean, therefore, when we say that we have the obligation to make an independent, reflective constitutional judgrnent on the facts whenever a claim of a constitutionally-protected right is involved is that, although we give great weight to the findings of the hearing judge as to specific, first-level facts (such as the time that an interrogation began, whether a meal was or was not served, whether a telephone call was requested, etc.) we must make our own independent judgment as to what to make of those facts; we must, in making that independent judgment, resolve for ourselves the ultimate, second-level fact — the existence or non-existence of voluntariness.” 3 Our analysis of the law applicable to the principal question presented here must focus in the first instance upon two leading cases decided by the Supreme Court of the United States: Bumper v. North Carolina, 391 U. S. 543 (1968) and Schneckloth v. Bustamonte, 412 U. S. 218 (1973). 4 ⁴³⁶ In Bumper a black man was brought to trial and convicted upon a charge of rape of a white woman. The conviction was reversed and the case remanded, essentially for the reason that the appellant’s grandmother, a 66 year old widow with whom the appellant lived in a house located in a rural area, at the end of an isolated road, was held not to have consented to the search of her residence and that it was constitutional error to admit in evidence a rifle found in the search and allegedly used by the appellant in the perpetration of the crime.

The grandmother, two days after the alleged offense but prior to the petitioner’s arrest, admitted four white law enforcement officers into the house. One of the officers had announced, “I have a search warrant to search your house.” The woman responded, “Go ahead,” and opened the door. At a hearing on the motion to suppress the prosecutor informed the trial court that he did not rely upon a search warrant but upon the consent of the grandmother. (No such warrant was offered in evidence nor was there any return of a warrant in the record). 5 She testified at the hearing that the officer had not read her the search warrant but he did teil her he had one.

She believed he had such a warrant and was quite agreeable to the search of her house: “. . . He said he was the law and had a search warrant to search the house, why I thought he could go ahead. I believed he had a search warrant. I took him at his word.” And again she stated: “Nobody threatened me with anything.

Nobody told me they were going to hurt me if I didn’t let them search my house. Nobody told me they would give me any money if I would let them search. I let them search, and it was all my own free will. Nobody forced me at all. ” (Emphasis added.) ⁴³⁷ In holding that the petitioner’s constitutional rights had been violated, Mr. Justice Stewart, writing for the Court, first stated the rule with respect to the burden of proof where consent is relied upon: “When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given.

This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all.” (Emphasis added.) As to the effect of a law enforcement officer’s claim of authority to search pursuant to a warrant, the Court observed: “When a law enforcement officer claims authority to search a home under a warrant, ne announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion — albeit cobrably lawful coercion.

Where there is coercion there cannot be consent. ” (Emphasis added.) In the instant appeal there was no evidence of a deliberate misrepresentation by the police or by the Assistant State’s Attorney that there was a clear right to the issuance of a search warrant. Bumper is not, however, to be distinguished simply by stating, as does the appellee in its brief, that the State Police did not claim authority to search the truck under a warrant which in fact did not exist and that they “simply indicated that they would obtain such a warrant if appellant refused consent.” This is an understatement of the facts in this case and there remains to be answered the ⁴³⁸ question whether here was also a situation coercion.” 6 Further guidelines in the determination of the voluntariness of a consent to a warrantless search emerged in Schneckloth v. Bustamonte, supra. 7 There, a police officer on patrol in the early hours of the morning stopped an automobile in which the petitioner, Robert Bustamonte, was riding, the officer having observed that the vehicle was missing a headlight and a license plate light. Five other occupants as well as the petitioner were requested by the police officer to step out of the car and the driver was given a citation for the missing lights and for driving without a permit. None of the occupants was placed under arrest and none was warned of his constitutional rights.

The officer, who asserted at trial that the atmosphere at the time was “congenial,” requested and received permission to search the vehicle. Three checks, later ascertained to have been stolen in a burglary, were found under the left rear seat. They were admitted into evidence at the trial over motions to suppress on the ground that there was no consent to the warrantless search of the automobile. Mr. Justice Stewart, speaking for the majority of the Court, reversed the ruling of the United States Court of Appeals for the Ninth Circuit that it was incumbent on the State to prove that the subject of a search knew that he had a right to refuse consent.

The Supreme Court thus upheld the ruling of the lower State courts that the question whether a consent to a search was in fact voluntary or was the product of duress or coercion, express or implied, is a ⁴³⁹ question of fact to be determined from the “totality of all the circumstances.” (Emphasis added.) The narrow holding of the Court was that when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments impose upon the prosecution the burden of demonstrating that the consent was in fact voluntarily given. 8 With respect to the determination of the element of voluntariness, the Court held: “Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.” 9 (Emphasis added.) The Court went on to state that consent searches must not be approved without “the most careful scrutiny” by the court in order to assure the absence of coercion: “The problem of reconciling the recognized legitimacy of consent searches with the requirement that they be free from any aspect of official coercion cannot be resolved by any infallible touchstone. To approve such searches without the most careful scrutiny would sanction the possibility of official coercion; to place artificial ⁴⁴⁰ restrictions upon such searches would jeopardize their basic validity. ... In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.” 412 U. S. at 229 . Finally, it was also emphasized that the standard of waiver enunciated in Johnson v. Zerbst, 304 v. S. 458 (1938) would not be applied to cases involving consent to search. “While we have occasionally referred to a consent search as a ‘waiver’, we have never used that term to mean an ‘intentional relinquishment or abandonment of a known right or privilege.’ ” Before we consider other pertinent cases on the precise issue involved in this appeal, we observe that the State’s reliance on the cases of Anderson v. State and Lopata v. State, supra, is misplaced.

Anderson is not apposite because there was no evidence contrary to the testimony of the police that the consent was freely and voluntarily given, so that the trial court’s finding was merely affirmed without any discussion of possible coercion. 10 Lopata v. State, supra, although containing a thorough analysis by Judge Moylan of the then recently decided Schneckloth case, really involved the consent by an innocent third-party to the search of his commercial garage, where there was no arrest and appellant was found to lack even the standing to contest the search. The issue presented here was not reached. Predictably, the “totality of the circumstances” rule of Schneckloth has since been applied in custodial situations as well by all the United States Courts of Appeals confronted ⁴⁴¹ with the question. United States v. Garcia, 496 F. 2d 670 (5th Cir. 1974); United States v. Rothman, 492 F. 2d 1260 (9th Cir. 1973) ; United States v. Heimforth, 493 F. 2d 970 (9th Cir. 1974) , cert. denied 94 S. Ct. 1615 ; United States v. Cage, 494 F. 2d 740 (10th Cir. 1974); United States v. Campbell, 16 Cr.

L. 2508 (4th Cir. 1975); United States v. Hearn and Taylor, 496 F. 2d 236 (6th Cir. 1974); Hayes v. Cady, 500 F. 2d 1212 (7th Cir. 1974); United States v. Watson, 504 F. 2d 849 (9th Cir. 1974), cert. granted February 18, 1975, 420 U. S. 924 , 43 L. W. 3452. 11 That the issue of voluntariness has, since Schneckloth , become “a delicate one” was observed by the Tenth Circuit in United States v. Heimforth, supra, where the appellant was convicted on four counts of illegally importing marijuana and possession of contraband with intent to distribute. On appeal he contended that the search of his warehouse, revealing large amounts of marijuana, was invalid on the ground that his consent to the search was not voluntary. The evidence disclosed that when he consented to the search he had already been arrested. While holding in accord with Rothman, supra, that the Supreme Court’s “totality of circumstances” test was applicable to all consent searches irrespective of whether or not the consenting party is in police custody, the Court in Heimforth pointed out that in considering the factual issue of voluntariness, “an important factor, however, remains whether there has been an arrest piior to the consent.” (Emphasis added.) (The case was remanded to the District Court for the limited purpose of making specific findings concerning the legality of the search — that Court having simply made a general determination that the search was legal.) Applying the guidelines of Schneckloth , the Sixth Circuit Court of Appeals in United States v. Hearn and Taylor, supra, collated those factors tending to establish a voluntary and uncoerced consent on the part of appellant Taylor to the ⁴⁴² search of his premises, and also those tending to establish an involuntary and coercive consent search.

The record disclosed that local law enforcement officers obtained a State warrant to search Taylor’s premises for a stolen Hobart welder. After locating the welder at one building they continued the search, in quest of a stolen traxcavator, going to a barn 150 yards away. One of the police officers testified that they asked Taylor about the traxcavator and he responded that he was unaware that it was in the barn although he had put hay in there some six or eight months before and had not returned to the barn since then. In response to the officer’s suggestion that they look at it Taylor responded, “Well, let’s go see it.” There they found the traxcavator concealed by the hay.

After the discovery, Taylor was permitted to go on his way and turned himself in at the jail later on. The search warrant for the Hobart welder was defective under the standards of Aguilar v. Texas and the Court found it clear that the continuation of the search after the location of the welder did not comport with constitutional standards. Consequently the admission of evidence concerning the location of the traxcavator could be supported only upon the theory that Taylor’s statements and actions rendered the search a consensual search. The trial court’s finding of a valid consent was overruled and Taylor’s conviction under the count 'of the indictment pertaining to the receiving and concealing of the traxcavator was set aside and a new trial granted.

Placed here in juxtaposition, the factors isolated and analyzed by the Court were as follows: Non-coercive “(a) his having been initially given his Miranda advice of rights incident to ⁴⁴³ his arrest on the stolen welder charge; Non-coercive (b) his continued freedom of movement and the lack of any physical restraint incident to his arrest upon the stolen welder charge; (c) his presence on his own farm and in familiar surroundings; (d) his acquiescence in the officer’s suggestion to ‘go look at it’ (i.e., the traxcavator) and his affirmative response, ‘Well, let’s go see it’; and (e) his leading the way to the barn and in mounting the bales of hay in advance of the others.” ⁴⁴² Coercive “(a) the presence of three law enforcement officers on his farm; ⁴⁴³ Coercive (b) his initial arrest upon the stolen welder charge; (c) the suggestion by the officers that the barn be inspected for the presence of the traxcavator; (d) the use by the officers of information gained by a prior unlawful search as the predicate for their suggestion that the barn be inspected for the presence of the traxcavator; and (e) the absence of any warning to the appellant that he had a constitutional right to refuse to consent to a search of the barn.” The Court concluded, upon its evaluation of the above elements, that the coercive would substantially outweigh the non-coercive, quoting the following language from Schneckloth , as did the Court in Garcia, supra: “In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable ⁴⁴⁴ subjective state of the person who consents.” 412 U. S. at 229 , 93 S. Ct. at 2049 , 36 L.Ed.2d at 864 . (Emphasis added.) Both before and after Schneckloth , there are cases in which the primary thrust of appellant’s claim of reversible error has been the alleged coercive effect of language or conduct of police officers pertaining to obtaining a warrant. Thus, in United States v. Curiale, 414 F. 2d 744 (2d Cir. 1969), cert. denied 396 U. S. 959 (1969), where the appellant was convicted of knowingly possessing three million dimes moving in interstate commerce, a federal agent presented the appellant with a consent form for searching his premises. The officer testified that after reading the form, appellant looked at the officer and remarked “If I don’t sign this, you are going to get a search warrant.” According to the officer, “At that point, I stopped him and said, T don’t want you to sign on that basis.

If you are going to sign it, do it voluntary’, [sic] He just looked and signed it.” The Court of Appeals rejected appellant’s contention that there was, as in Bumper v. North Carolina, supra, an unjustified search. It was found that appellant’s statement concerning the search warrant showed an awareness of his right to resist the search in the absence of a warrant and that although he understood his right he nevertheless chose to relinquish it. As to the effect of the police officer’s response, the Court held: “Here Aheam’s response was sufficient to put the Appellant on notice that his consent should not be conditioned on the availability or unavailability of a warrant. There was no duty to disclose that at that particular moment in a continuing investigation there was insufficient evidence to get a search warrant.

In any case, it is clear that Curíale knew what he was doing. Relying upon the fact that the dimes were so well concealed that they would not be found, the appellant hoped to turn suspicion ⁴⁴⁵ away from himself by appearing to give the authorities innocent and wholehearted cooperation. His lack of success, by itself, does not affect the voluntariness of his assent.” (Emphasis added.) In reliance upon Curiale , in United States v. Savage, 459 F. 2d 60 (5th Cir. 1972), the Court in a per curiam opinion held that a written consent was not rendered involuntary by reason of the fact that before signing the form the appellant inquired of the police officer if he could get a search warrant and the officer replied, “Yes, we probably can.” The Court stated: “The officer’s statement was in response to defendant’s inquiry, and it was not a misrepresentation of the facts.” Implied coercion was claimed by the appellant in United States v. Culp, 472 F. 2d 459 (8th Cir. 1973), cert. denied 93 S. Ct. 2161 (1973), wherein a police officer announced that “[W]e are in the