Brown v. State

• Citation: 15 Md.App. 584,292 A.2d 762
• Decision Date: 03 July 1972
• Docket Number: No. 400,400
• Parties: Willie Lee BROWN, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 584

15 Md.App. 584

292 A.2d 762

Willie Lee BROWN, Jr. v. STATE of Maryland.

No. 400.

Court of Special Appeals of Maryland.

July 3, 1972.

Harry Sadoff, Cambridge, on brief for appellant.

James G. Klair, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and William B. Yates, State's Atty. for Dorchester County, on brief, for appellee.

Submitted on brief to ORTH, MOYLAN and GILBERT, JJ.

MOYLAN, Judge.

A review of the convictions for storehouse breaking and larceny of the appellant, Willie Lee Brown, Jr., in the Circuit Court for Dorchester County by a jury, presided over by Judge C. Burnam Mace, poses squarely the question 'When is 'open view' not 'Plain View'?'

The 'Plain View Doctrine' is simply that it is constitutionally reasonable for the authorities to seize objects come upon by inadvertence during a valid prior intrusion.

The Emergence of a 'Plain View' Doctrine

Although Justice Stewart's references to a 'plain view doctrine' seem to imply something of reasonably venerable lineage, historical analysis reveals that the doctrine, as a recognized doctrine, sprang full-blown from his plurality opinion in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564. ¹ There had been, to be sure, intimations but nothing resembling a body of doctrine.

The 'Plain View Doctrine' is a newly recognized exception to a fundamental proposition. That proposition is that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.' Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576; Coolidge v. New Hampshire, supra, 403 U.S. at 454-455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564. In referring to the 'few specifically established and well-delineated exceptions,' the Supreme Court has been careful not to close the category but had, prior to Collidge, specifically listed only the 'automobile search' ² and the 'SEARCH INCIDENT TO A LAWFUL ARREST,'³ with the very late addition of 'exigent circumstances' ⁴ to the roster. Katz, 389 U.S. at 357, n. 19, 88 S.Ct. 507. See also Landynski, Search and Seizure and the Supreme Court (1966), Chapter IV, 'Constitutional Searches without Warrant'; Landynski, 'The Supreme Court's Search for Fourth Amendment Standards: The Warrantless Search,' 45 Conn.Bar Journal 2 (1971).

Although now apparently an autonomous 'exception' in its own right, the 'Plain View Doctrine' had obscure beginnings as a marginal factor in the 'search incident' law and its early growth went largely unnoticed. ⁵ Its seedtime cannot be understood apart from the 'search incident' context that generated it initially and was its sole early untrient. It was a mere descriptive phrase-sometimes 'plain view', sometimes 'plain sight', sometimes 'open view', sometimes 'visible and accessible,' and always in lower case-in the recurring ebb and flow of 'search incident' law. It was generally resorted to during the ebb tides to distinguish away and to minimize the significance of the preceding flood tides. Its tactical utility and its growth can only be understood by looking to the larger fortunes of that 'search incident' war.

Fourth Amendment law generally attracted little attention until the exclusionary rule made it a factor in criminal litigation. ⁶ Even then, the Supreme Court had infrequent occasion to concern itself with search and seizure questions until the adoption of laws in and immediately preceding the 1920's proscribing the sale and possession of narcotic drugs and of alcoholic beverages. ⁷ Landynski, Search and Seizure and the Supreme Court, 87-88; Lasson, The History and Development of the Fourth Amendment to the United States Constitution (1937). With the coming of the Prohibition cases, however, the deluge began.

The Common law right to search an arrestee as an incident of lawful arrest, be that arrest warrantless or pursuant to warrant, was early accepted as compatible with American concepts of reasonable search and seizure. See Judge Cardozo in People v. Chiagles, 237 N.Y. 193, 196, 142 N.E. 583 (1923); United States v. Rabinowitz, 339 U.S. 56, 72, 70 S.Ct. 430, 94 L.Ed. 653 (1950), (dissenting opinion by Frankfurter, J.). The controversy that raged in the Supreme Court from 1927 through 1969 was over the permissible scope-the range in space-the search perimeter-of an admittedly proper 'search incident.' Five times in forty-two years, the Court reversed its field, producing six sharply juxtraposed phases of permitted scope to a 'search incident.' Three periods of broad scope-1927 to 1931, ⁸ 1947 to 1948 ⁹ and 1950 to 1969 ¹⁰-alternated with three periods of narrow scope-1931 to 1947, ¹¹ 1948 to 1950 ¹² and 1969 to present ¹³. The very concept of 'Plain View' is a by-product of that controversy, a notion that gradually evolved to help fill the interstice between the otherwise rigidly bipolar positions of 'broad scope' and 'limited scope.'

The reasons of necessity which underlay the right to search an arrested person incidental to the arrest were 1) to protect the arresting officer and to deprive the prisoner of potential means of escape, Closson v. Morrison, 47 N.H. 482 (1867), and 2) to avoid the destruction of evidence by the arrested person, Reifsnyder v. Lee, 44 Iowa 101 (1876); Holker v. Hennessey, 141 Mo. 527, 42 S.W. 1090 (1897). See Rabinowitz, 339 U.S. at 72-73, 70 S.Ct. 430 (dissenting opinion by Frankfurter, J.). Without analyzing the purpose of the rule, the Supreme Court, in a passing dictum, first acknowledged its existence in Weeks v. United States, supra, 232 U.S. ¹⁴ at 392, 34 S.Ct. at 344:

'What, then, is the present case? Before answering that inquiry specifically, it may be well by a process of exclusion to state what it is not. It is not an assertion of the right on the part of the government, always recognized under English and American law, to search the person of the accused when legally arrested, to discover and seize the fruits or evidences of crime. This right has been uniformly maintained in many cases.' (Emphasis supplied)

Eleven years later, the Supreme Court again made passing reference to the 'search incident' rule in a dictim in Carroll v. United States, supra. ¹⁵ It cited its earlier dictum in Weeks but after the words 'upon his person' added the words 'or in his control.' The added words, however, were in accord with the common law tradition and were but an explicit statement of what was implicit in Weeks. The Court said, 267 U.S. at 158, 45 S.Ct. at 287:

'When a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense may be seized and held as evidence in the prosecution.' (Emphasis supplied)

The germ of later controversy appeared seven months hence as an uncritical dictum in Agnello v. United States, supra. Citing only Weeks and Carroll as authority, the Court loosely added to the proposition the words 'and to search the place where the arrest is made.' It said, 269 U.S. at 30, 46 S.Ct. at 5:

'The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime, and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody is not to be doubted. See Carroll v. United States, . . . Weeks v. United States.' (Emphasis supplied)

A close reading of the obvious purpose of the Court in referring to 'the place where the arrest is made' would have precluded undue significance being given to that phrase. Agnello was not dealing with the question of the permitted scope of a 'search incident' at the place where the actual arrest was made. Its clear holding, rather, was that an arrest at one place (whatever 'search incident' was there permitted) could in no event justify a 'search incident' at another place some blocks away. In such a factual and legal posture, the Court's use of the word 'place' should not have been read overbroadly. Two years later however, the Court did read Agnello overbroadly in Marron v. United States, supra. ¹⁶

In Marron, Prohibition agents were executing a warrant authorizing the search for and seizure of intoxicating liquors and articles used in their manufacture. They went to execute the warrant in a second-floor establishment containing six or seven rooms. While executing the warrant, they found violations of the liquor laws being perpetrated in their presence. In searching a closet for liquor, they noticed and seized a ledger which significantly inculpated the defendants. The government advanced two rationales to justify the seizure of the ledger. The Supreme Court rejected the first, but accepted the second. It specifically held that a proper search under a warrant could not justify the seizure of the ledger which had been inadvertently discovered in the course of the legitimate search because the ledger had not been particularly described. It went on, however, to assert a second and legitimate rationale. The discovery by the agents of violations being perpetrated in their presence justified arrests, which were made. The ledger, which was not seizable under the warrant, was seizable as an incident of the lawful arrest. In asserting a broad scope for a 'search incident,' the Court relied on Agnello, Carroll and Weeks and said, 275 U.S. at 199, 48 S.Ct. at 77:

'The authority of officers to search and seize the things by which the nuisance was being maintained extended to all parts of the premises used for the unlawful purpose.' (Emphasis supplied)

No mention was made of 'plain view.' It was the clear holding of the Court, rather, that the scope of a 'search incident' extended to the entire...