Dixon v. State

• Decision Date: 14 October 1974
• Docket Number: No. 970,970
• Citation: 23 Md.App. 19,327 A.2d 516
• Parties: Clyde George DIXON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 19

23 Md.App. 19

327 A.2d 516

Clyde George DIXON v. STATE of Maryland.

No. 970.

Court of Special Appeals of Maryland.

Oct. 14, 1974.

Gerald A. Kroop, Baltimore, for appellant.

Leroy Handwerger, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Richard J. Kinlein, State's Atty. for Howard County and Allen Horvitz, Asst. State's Atty. for Howard County, on the brief, for appellee.

Argued before MORTON, MOYLAN and MOORE, JJ.

MOYLAN, Judge.

With the possible exception of the 'dropsy' cases, ¹ no aspect of Fourth Amendment litigation has afflicted law enforcement with the yawning credibility gap wrought by inventory searches. The conviction of the appellant, Clyde George Dixon, by Judge James Macgill in the Circuit Court for Howard County for (1) driving while under the influence of drugs in contravention of Article 66 1/2, Section 11-902(a), and (2) possession of barbiturates, occasions a hard look at the particular 'inventory search' relied upon in this case specifically and at the constitutional validity of the inventory-search rationale generally.

The Factual Background

But for the all-too-real discomfiture of the appellant, the misadventure that brought him to his present sad estate was vintage Buster Keaton. At 11 a. m. on November 6, 1972, he pulled innocently onto the parking lot adjacent to the Howard County Courthouse in Ellicott City and committed the fatal blunder of parking in a 'no parking space' under the watchful eye of the Howard County Central Alarm headquarters. Thirty minutes later the episode was over, with the appellant in full custodial arrest, his car impounded and searched, and himself charged with the possession of barbiturates found in the course of that search. Juridically as well as botanically, 'great oaks from little acorns grow.'

The Courthouse and the Central Alarm headquarters occupy two sides of a common parking lot in Ellicott City. Immediately in front of Central Alarm, on November 6, 1972, were parked two large and mobile emergency generators. Beside (or perhaps between) the generators were three 'no parking spaces,' also immediately in front of Central Alarm. John Earp-a dispatcher for Central Alarm-was watching from the open doorway of his headquarters, which was up one flight of stairs and commanded a good view of the parking lot, as the appellant initially moved onto and across that lot. The appellant attempted to back his car into one of the prohibited spaces, a move requiring a sharp left-hand turn because of the generators. In the course of the maneuver, the left front fender of the appellant's car struck one of the parked generators. The appellant, without any apparent undue effort, then simply pulled forward and renegotiated his way into an adjacent but also prohibited space. Earp called the police.

Earp then accosted the appellant and reminded him that he had bumped the generator. The appellant replied that 'it didn't seem to be damaged too bad' and, according to Earp, 'seemed to be indifferent to the fact.' Dismissing the subject of the accosting, the appellant then asked Earp for and received directions to the jail, which was one floor below Central Alarm. Chagrined at the appellant's non-chalance, Earp then placed a second call to the police to inform them that the subject of the first call had 'left my location and gone down to the jail.' Earp positioned himself on a catwalk outside Central Alarm and maintained his vigil. Shortly thereafter, the appellant left the jail and started up the stairs to the parking lot level. Earp observed him 'stumble' (but not fall) as he climbed the stairs. The appellant immediately regained his balance and walked across the parking lot toward the Courthouse. In going around a solid rank of parked cars, the appellant, still under Earp's surveillance, 'walked into the back of a car parked right on the corner, at which time he-then he continued toward the Courthouse.' Earp placed yet a third call to the police to keep them current on the appellant's movements. A few minutes later, Earp observed the appellant return from the Courthouse toward his car. A fourth call was placed to the police. Earp, now partially distracted by other duties, finally observed the appellant getting into his car and leaving the parking lot. Earp conceded that, generally speaking, the appellant 'seemed to be walking fairly normally' and that nothing was unusual about his breath.

The only other witness in the case was Patrolman First Class Steven Greisz of the Howard County Police Department. He, with his partner, was on routine patrol north of Ellicott City when he received a radio dispatch that 'a parking violation' had occurred 'in the Courthouse parking lot.' When the officers arrived at the scene, the appellant had not yet returned to his vehicle. Instead of routinely writing out a ticket and leaving it under the windshield wiper, the officers ran a computerized check on the car and 'found it not to be stolen and so forth.' The testimony is somewhat equivocal as to whether or not the officers deliberately waited for the parking violator to return to the scene of his violation rather than simply leave the ticket and move on. On cross-examination, Officer Greisz asserted that the appellant returned to his car before the writing of the warning ticket was completed. On direct examination, Officer Greisz chracterized his attitude as, 'While we were there, hopefully awaiting the occupant or the driver to come to the car. . . .' In any event, the appellant returned. Officer Greisz accosted him, 'Sir, would this be by any chance your vehicle?' The appellant acknowledged that the car belonged to his sister (who lived with him in Baltimore) but that he had been driving it. Upon demand, the appellant produced license and registration card, both of which were in good order. The officer served a warning ticket on the appellant for the parking violation and asked the appellant to move the car. The appellant got in the car and Officer Greisz, with his partner, ostensibly left the area.

They moved, however, only so far as a contiguous 'back parking lot' in order to maintain a discreet surveillance on the appellant. In the course of this move, they 'lost him.' The appellant had apparently walked back to the Courthouse. The officers immediately returned to the scene of the parking violation and soon located the appellant. Officer Greisz told him that if he did not move the car immediately, he would receive a ticket instead of a mere warning. The appellant, at this urging, them moved his car to the 'back parking lot.' The officers followed him closely. Under their scrutiny, the appellant blundered again. He attempted to park in 'a striped area which is not a designated parking space' instead of in a proper area which is 'designated by white lines in the back Courthouse parking lot.' Officer Greisz 'advised him that he had to park in a proper space, which he did at that time.' The officers, ultimately mollified, drove off.

Although the ultimate characterization of the appellant by Officer Greisz was an amalgam of observations made during this initial encounter and twenty minutes later at the time of the appellant's arrest, the bulk of the characterization refers to the appellant during the initial encounter. Officer Greisz summarized:

'I observed, as I said, at the time of arrest and also at the time I issued Mr. Dixon his warning in the parking area down in front of Central Alarm headquarters, that his breath was apparently normal. There was no-I couldn't detect any odor of alcohol on his breath at that point. The color of his face was normal, his clothes were in an orderly fashion. His attitude during a majority of the, my confrontation with him, was polite and cooperative. He had, as far as I know, no unusual actions, no profanity or anything like this. His eyes were slightly bloodshot, his balance was fair ² and his walk was fair. His turning ability was fair. His speech was slurred.'

As to the initial encounter, the bottom line is that the officers, after speaking with the appellant and after observing him drive his car, were satisfied to let the warning for the parking violation suffice. The incident as far as they were concerned having ended, they drove off.

Some twenty minutes later, the two officers were at the Golden Triangle Shopping Center at the intersection of Route 40 and Route 29 when a second of the calls, of the total of four dispatched by Earp to the police caught up with them. Not comprehending that the initial complaint had come in four times and that they were still getting (and were yet to get) repetitions of the complaint which they had already handled, the officers obviously surmised that the appellant was back down in the prohibited parking space in front of Central Alarm, from which they had driven him twenty minutes earlier. The officers hurried back to the Courthouse. As they climbed the steep hill of Court Avenue in their final approach to the Courthouse, yet a third of the original four complaints caught up with them. It was the one that informed them that the appellant had bumped into the generator. They concluded that this had happened as they were hurrying back to the scene. These two anachronisms were uppermost in the minds of the officers whn they approached the Courthouse and 'observed the car on the back parking lot in motion.' They turned on their emergency lights, moved to the rear of the appellant's car and motioned for the appellant to stop. He stopped. Officer Greisz immediately advised the appellant 'that I was placing him under arrest at this point for driving while intoxicated.' Without another observation being made or another word being said, the appellant was removed from his vehicle. According to Officer Greisz, 'At this point he was searched, a frisk search for weapons at that point, and advised he was under arrest. He was placed in the police vehicle and advised of his Miranda...