Briscoe v. State

• Decision Date: 24 October 2011
• Docket Number: 2010.,No. 4,Sept. Term,4
• Citation: 30 A.3d 870,422 Md. 384
• Parties: William E. BRISCOEv.STATE of Maryland.
• Court: Maryland Court of Appeals

422 Md. 384

30 A.3d 870

William E. BRISCOE

v.STATE of Maryland.

No. 4

Sept. Term

2010.

Court of Appeals of Maryland.

Oct. 24, 2011.

Brian M. Saccenti, Asst. Public Defender (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for petitioner.Brian S. Kleinbord, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for respondent.Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ^* ADKINS and BARBERA, JJ.BARBERA, J.

Petitioner William E. Briscoe was tried before a jury in the Circuit Court for Baltimore City and convicted of the crimes of possessing a regulated firearm after having been convicted of a disqualifying crime; wearing, carrying, or transporting a handgun in a vehicle; possessing cocaine; and driving on a suspended license. Those convictions were based on evidence the police recovered while searching Petitioner's vehicle at the time of his arrest. At that time, the police found cocaine in the center console of the passenger compartment and a handgun in the locked glove compartment.

Petitioner did not challenge the seizure of the cocaine, but he did seek suppression of the handgun, claiming that it was the fruit of a search forbidden by the Fourth Amendment. The suppression court denied the motion, finding that the evidence was lawfully obtained either as a valid inventory search under South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), and its progeny, or as a valid search incident to arrest under New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

On appeal to the Court of Special Appeals, Petitioner challenged the Circuit Court's denial of his motion to suppress the handgun. While the case was pending in that court, the Supreme Court decided Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). The State conceded that, under Gant, the search violated the Fourth Amendment. The State argued, though, that Petitioner was not entitled to suppression of the handgun, by application of the good-faith exception to the Fourth Amendment's exclusionary rule. In the State's view, the police conducted the search “rely[ing] in good faith on controlling judicial precedent.” The Court of Special Appeals did not reach the Gant issue, holding instead that the handgun found within the locked glove compartment was recovered during a valid inventory search. Petitioner filed a petition for writ of certiorari, which we granted to answer the following questions:

1. Did the circuit court err in finding that a search of a vehicle was a valid inventory search where the State failed to establish (a) that there was a legitimate need to tow the vehicle, (b) that the officer made an inventory list and gave a copy to the driver, (c) that the towing of the vehicle and the opening of the locked glove compartment were permitted by established standardized policies, or (d) that the opening of the locked glove box was necessary to safeguard property against loss?

2. In light of the Supreme Court's recent decision in Arizona v. Gant, [556 U.S. 332, 129 S.Ct. 1710] (2009), did the circuit court err in finding that a search of a vehicle, which included a search of the locked glove compartment, was a valid search incident to arrest where the State failed to establish that the arrestee was unsecured and within reaching distance of the vehicle at the time of the search, and where the police had the keys to the locked glove compartment?

At the time of briefing and oral argument in this case, the parties and the Court were aware that the issue generated by the State's good-faith argument was in material respect identical to an issue then pending certiorari review in the Supreme Court. The Court granted the writ in Davis v. United States, ––– U.S. ––––, 131 S.Ct. 502, 178 L.Ed.2d 368 (2010), and on June 16, 2011, issued its opinion in the case. 564 U.S. ––––, 131 S.Ct. 2419, 180 L.Ed.2d 285.¹

The Davis Court held, much as the State has argued in the present case, “that searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” 564 U.S. at ––––, 131 S.Ct. at 2423–24. The holding of Davis applies to the second question before us. See Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (holding that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past”); State v. Daughtry, 419 Md. 35, 78, 18 A.3d 60, 86 (2011) (stating same). Applying Davis to that question, we must determine whether, incident to Petitioner's arrest, the police searched the locked glove compartment in objectively reasonable reliance on then-binding Maryland appellate precedent, namely Belton.

For reasons we shall explain more fully, we hold that the search of the glove compartment was not a valid inventory search. We further hold that, under Davis, the good-faith exception to the exclusionary rule applies to what, at the time, was a lawful search of the glove compartment, under Belton. We therefore affirm the judgment of the Court of Special Appeals, albeit on a ground not relied upon by that court.

I.

A. The Suppression Motion Hearing

Baltimore City Police Officer Lavgh Bormanshinov was the sole witness at the hearing on Petitioner's motion to suppress the handgun. Officer Bormanshinov testified as follows about the sequence of events before and during the search of Petitioner's vehicle:

On June 26, 2007, at 12:50 a.m., Officer Bormanshinov observed a minivan traveling near the 1200 block of Presstman Street in Baltimore. Its taillights were not illuminated. Officer Bormanshinov activated his lights and trained his spotlight on the minivan, indicating to the driver that he pull over. The driver, Petitioner, immediately stopped the minivan.

Officer Bormanshinov approached the vehicle and asked Petitioner for his driver's license and the vehicle's registration. Petitioner could not produce his driver's license, but he did provide the officer with the registration. The registration showed that the minivan was owned by Ms. Luella Lane.

Officer Bormanshinov returned to his vehicle and, using the information Petitioner supplied him, discovered that Petitioner's license was suspended and there was an open arrest warrant for him. Officer Bormanshinov returned to the minivan and asked Petitioner for the keys, which Petitioner gave him. Officer Bormanshinov then went back to his vehicle and, upon further investigation, learned that the warrant was “positive.” ² Officer Bormanshinov removed Petitioner and his passenger, Jeremy Ringgold, from the minivan. Officer Bormanshinov arrested Petitioner, searched him, and sat him on the curb.

At some point during the preceding events, Officer Bormanshinov's Sergeant, whose name is not reflected in the record, arrived on the scene. The Sergeant stood next to the passenger door to monitor the then-still-seated front seat passenger, Ringgold, while Officer Bormanshinov further investigated the warrant for Petitioner. When Officer Bormanshinov returned, he asked Ringgold for identification for the purpose of running a “warrant check.” Ringgold was unable to comply. Consequently, Officer Bormanshinov and his Sergeant removed Ringgold from the minivan, as well. Officer Bormanshinov searched Ringgold (evidently finding nothing of relevance to the present case) and sat him on the curb next to Petitioner.

Officer Bormanshinov testified that, “[s]ince [Petitioner] was arrested,” he “did an inventory search of the vehicle.” Using the keys Petitioner gave to him, Officer Bormanshinov unlocked the glove compartment and found a handgun inside. He also found several vials of suspected cocaine, one in the coin slot to the left of the steering wheel and two more in a Colt 45 can that was in the vehicle's center console.

The State did not ask further questions of Officer Bormanshinov concerning the purported “inventory search.” Neither did the State introduce any evidence of a Baltimore City Police Department policy or procedure regarding inventory searches.

At some point, Officer Bormanshinov decided to have the minivan towed to the “City yard.” Officer Bormanshinov tried without success to have Ms. Lane, the owner of the vehicle, contacted to let her know that her car would be towed to the impound lot.

During cross-examination, Officer Bormanshinov testified that Petitioner was calm, polite, cooperative, and sober during the traffic stop, arrest, and search of the minivan. Defense counsel then asked Officer Bormanshinov when the decision was made to tow the minivan, and he responded simply, “My plan was to tow the vehicle. But I had to do a search of the vehicle before—that's our procedure—before it gets towed.” Defense counsel propounded further questions on this point, resulting in the following exchange:

Defense Counsel: Are you familiar with the general order that requires you to follow all of the procedures for towing a car or impounding a car?

Officer Bormanshinov: I believe once the driver's suspended and he or she is not the registered owner, then the car, car can be towed.

Defense Counsel: But do you have any policies or procedures that direct you what you're supposed to do in that situation?

Officer Bormanshinov: I have not come across that.

Defense Counsel: You're not familiar with any general orders describing what you should be doing in that situation?

Officer Bormanshinov: No, ma'am.

* * *

Defense Counsel: You're not familiar with the towing procedures that require you to do a complete and total inventory of everything that's in the car?

Officer Bormanshinov: I'm familiar with that, ma'am.

Defense Counsel: You are?

Officer Bormanshinov: With the inventory, yes.

Defense Counsel: So then you completed your vehicle report;...