Conboy v. State

• Citation: 155 Md. App. 353,843 A.2d 216
• Decision Date: 02 March 2004
• Docket Number: No. 2298,2298
• Parties: David Nolan CONBOY v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

843 A.2d 216

155 Md. App. 353

David Nolan CONBOY v. STATE of Maryland.

No. 2298, Sept. Term, 2002.

Court of Special Appeals of Maryland.

March 2, 2004.

Adina N. Amith (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Edward J. Kelley (J. Joseph Curran, Jr., Attorney General, on the brief), Baltimore, for appellee.

Panel: SALMON, KRAUSER and BARBERA, JJ.

KRAUSER, Judge.

While under the influence of alcohol, appellant, David Conboy, crashed a Ford van into a ditch by the side of a state road. The van contained construction equipment and was littered with alcoholic beverages. Leaving the badly damaged vehicle where it lay, appellant fled the scene of the accident only to return later, in a taxicab, to retrieve his belongings and the equipment. His return, however, was met by more than a wrecked vehicle. A state trooper had arrived and was investigating the accident. As the trooper approached the cab, he asked appellant whether he was "Mr. Conboy," the man who the trooper had reason to believe was driving the van at the time of the accident. Inebriated and reeking of alcohol,¹ appellant responded, "I'm not David Conboy," thereby revealing what sober reflection might have helped him conceal—his true identity. Unaware of how inculpatory this denial was, appellant then insisted that his name was "George Mitchell Unson"—a less inventive choice than one might think as it apparently belonged to appellant's step brother, whose reaction to this choice has gone unrecorded.

Observing a rifle in the backseat of the cab, which would later turn out to be loaded, the trooper asked appellant to step out of the cab. When he did, the trooper patted him down for weapons. Upon feeling a key in appellant's back pocket, the trooper reached into that pocket and retrieved what would ultimately prove to be the key to the van. That, in turn, led appellant to volunteer that he was drunk and had in fact been the driver of the van.

Appellant was subsequently charged with driving while under the influence of alcohol and numerous other traffic violations.² Seeking to exclude evidence of the key and his statement, he filed a motion to suppress in the Circuit Court for Worcester County, claiming that when the trooper reached into his pocket to retrieve the key the trooper exceeded the bounds of a permissible Terry³ stop and that his ensuing inculpatory statement was obtained in violation of the Fifth Amendment. When that motion was denied, appellant was tried upon an agreed statement of facts and convicted of driving while under the influence of alcohol.

He now asks this court to review the refusal of the trial court to suppress these two pieces of evidence. We do so and reach the same result as the trial court did but not necessarily for the same reason.

SUPPRESSION MOTION

The only evidence presented at the suppression hearing was the testimony of State witness, Trooper David Grinnan of the Maryland State Police. He testified that, on May 28, 2002, at approximately 6:02 pm, he responded to a report of "a single vehicle accident at Route 50 and Silver Point Lane in West Ocean City, Worcester County, Maryland." There, he found an unoccupied "older model Ford van facing eastbound in the westbound ditch, approximately thirty to forty yards past Silver Point Lane." Badly damaged, the van was almost resting on its side; its driver's side wheels "ripped from the vehicle."

The trooper observed "alcohol containers in the vehicle" and further noted that "alcohol had spilled" inside the vehicle, "leaving a strong odor." In addition to the alcoholic beverages, the van contained a stereo and construction tools and equipment.

The trooper then "ran the registration to find out who the vehicle belonged to, who the operator could be." He learned that the vehicle's license plates belonged, not to a Ford van as expected, but "to an `85 Chevrolet van ... registered to a subject named Wolf," who resided in West Ocean City, Maryland. Unable to further identify the owner of the Ford van, the trooper left the accident scene to interview Wolf at the address he had been given. At that address, he found Wolf, who explained that he had removed the license plates from his Chevrolet van and given them to his brother for "safekeeping." He also informed the trooper that a "David Conboy," who was then staying with his brother, had taken the license plates and placed them on the Ford van in question.

Leaving Wolf's residence, Trooper Grinnan returned to the accident scene, arriving 30 to 40 minutes after he had initially responded to the accident. When he arrived, he observed that the stereo, the construction tools and equipment, and other items had been removed from the van. He concluded that "whoever had wrecked the van ... was still in the area," reasoning that removal of all of the equipment would have taken several trips. At the suppression hearing, he opined: "[I]f I was a construction person and I wrecked my van and I had twenty thousand dollars' worth of equipment in there, I am going to keep going back to the van until my equipment is gone because I am not going to leave the van unattended like that."

A taxicab then "roll[ed] up" to a nearby stop sign. "Thinking that if this person is wrecked he needs to get out of here somehow," the trooper's attention shifted to the cab. He saw appellant "in the front passenger's seat." Although the taxi cab driver was looking in the trooper's direction, appellant "would not look at [him] to save his life." Indeed, "his head was plastered in the opposite direction from mine," the trooper noted. Appellant's "continued" refusal to "acknowledge" the trooper, the crash, or the trooper's marked and well-lit cruiser, only "sparked [the trooper's] curiosity." After all, according to the trooper, "when you have that situation, everybody wants to look." Trooper Grinnan then "pointed the cab over to investigate."

Approaching appellant, who was still seated in the passenger's side of the vehicle, the trooper asked, "Mr. Conboy?" Appellant responded, "I'm not David Conboy" and then identified himself as "George Mitchell Unson," using his stepbrother's name. According to the trooper, appellant "appeared intoxicated," and he detected a "strong odor of an alcoholic beverage coming from [appellant's] breath and person." A deer rifle and a bottle of Popov vodka lay on the backseat of the cab.

After appellant explained that the rifle was his and that he liked to hunt, the trooper asked appellant to step out of the cab. When he did, the trooper "patted him down ... to make sure that [appellant] did not have any other kind of weapons that may be associated with deer hunting, such as buck knives."

During the pat down, the trooper felt an object in appellant's back pocket. He "immediately recognized" that it was "a key of some type," possibly a car key. "[B]ased on the fact that the collision had occurred" and that a vehicle lay "unattended in the ditch," the trooper placed his hand in appellant's pocket and retrieved the key. The key turned out to be "a Ford key, belonging to a Ford motor vehicle." After directing appellant to sit on the ground, the trooper returned to the van with the key. He then "checked the Ford key with the van and turned the ignition over and discovered that the key was, in fact, the key to the [wrecked] van."

As he returned to where appellant was sitting, Trooper Grinnan remarked, "it's funny, the key fits." Appellant "shrugged" and "threw his hands up and said ... `what would you do?'" Then, according to the trooper, appellant

indicated that he was, in fact, driving the vehicle, and that the rear end locked up and he believed the drive shaft fell out, and the vehicle rotated and came to rest in the ditch. And that he had fled the scene because he was drunk. And then he said, `what would you do?'

Trooper Grinnan placed appellant under arrest. Following the arrest, a person who was only identified as "Trooper Sutka" arrived at the scene of the accident and took possession of the rifle.

STANDARD OF REVIEW

In reviewing a denial of a motion to suppress, we accept the findings of fact made by the circuit court, unless they are clearly erroneous. See Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239 (1990)

; Marr v. State, 134 Md.App. 152, 163, 759 A.2d 327 (2000). Our review is based solely upon the record developed at the suppression hearing, and we review that record in the light most favorable to the prevailing party. See Wengert v. State, 364 Md. 76, 84, 771 A.2d 389 (2001); Trott v. State, 138 Md.App. 89, 97, 770 A.2d 1045 (2001). We review de novo, however, all legal conclusions, making our own independent constitutional determination of whether the search in question was lawful and whether appellant's statement was lawfully obtained. See Wengert, 364 Md. at 84,

771 A.2d 389; Trott, 138 Md.App. at 97,

770 A.2d 1045.

ADMISSIBILITY OF THE KEY

While Appellant concedes that "the trooper had reason to feel [his] clothing for weapons," he contends that the trooper exceeded the limits of a Terry frisk by "taking a key from [his] pocket." He argues that because the "`incriminating nature of the object [the key] was not immediately apparent'" to the trooper, the search was not constitutionally permissible under the plain feel doctrine, as promulgated by the Supreme Court in Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).

In Dickerson, the Supreme Court extended the boundaries of the a "patdown" to allow seizure of contraband discovered during a lawful Terry search as long as the contraband's "incriminating character is immediately apparent" by sight or touch. 508 U.S. at 375, 113 S.Ct. 2130. But if the incriminating nature of the item cannot be discerned without further physical investigation, then the seizure of the object cannot be justified under the "plain view" doctrine or its corollary, "plain feel." See id. In support of his claim that the...