Ehrlich v. State

• Decision Date: 09 July 1979
• Docket Number: No. 1086,1086
• Citation: 403 A.2d 371,42 Md.App. 730
• Parties: Kenneth Edward EHRLICH, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 730

42 Md.App. 730

403 A.2d 371

Kenneth Edward EHRLICH, Jr. v.STATE of Maryland.

No. 1086.

Court of Special Appeals of Maryland.

July 9, 1979.

Joel Marc Abramson, Columbia, with whom were Talkin & Abramson, Columbia, on the brief, for appellant.

William H. Kenety, V., Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., William Hymes, State's Atty. for Howard County and A. Gallatin Warfield, III, Asst. State's Atty. for Howard County on the brief, for appellee.

Argued before MOYLAN, WILNER and COUCH, JJ.

MOYLAN, Judge.

The conviction of the appellant, Kenneth Edward Ehrlich, Jr., by a Howard County jury, presided over by Judge Guy J. Cicone of 1) possession of cocaine, 2) possession of marijuana and 3) possession of marijuana with intent to distribute raises four related search and seizure questions one going to the merits of the Fourth Amendment and three going to procedural questions for the handling of those merits.

The ultimate issue of guilt or innocence is beyond dispute.The police seized from the appellant's person and from the trunk of the appellant's automobile, at a time when it was occupied by him, 1) cocaine and 2) marijuana in sufficient quantity reasonably to indicate an intent to distribute it.The entire case hinges upon the constitutionality of that second seizure and upon the procedures employed to litigate that constitutionality.

1.The Fourth Amendment Merits

At the conclusion of the pretrial suppression hearing, Judge Cicone ruled that the warrantless search of the appellant's automobile and the seizure of the contraband therefrom was constitutional under the Carroll Doctrine exception to the warrant requirement.Two conditions must, of course, coalesce to engage the gears of the Carroll Doctrine: 1) probable cause to believe that the automobile (or equivalent) contains evidence of crime and 2) exigency, to wit, a danger that the automobile and its evidentiary contents may disappear if the police do not seize the investigative current as it serves.Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543(1925);Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419(1970);Coolidge v. New Hampshire (Part IIB), 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564(1971);King and Mobley v. State, 270 Md. 76, 310 A.2d 803(1973);Soles v. State, 16 Md.App. 656, 299 A.2d 502(1973).Before focusing in upon the satisfaction of those two conditions, one immaterial issue, raised by the appellant, can be quickly cleared away.The appellant takes pains to point out that he was in the police cruiser when the warrantless search of his automobile took place and that the locus of the search was beyond his "reach, lunge or grasp," citing Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685(1969), andHowell v. State, 271 Md. 378, 318 A.2d 189(1974).That fact, of course, is utterly immaterial.Judge Cicone explicitly, and quite properly, ruled that the warrantless search here was constitutional not under the search-incident-to-lawful-arrest exception to the warrant requirement but under the very distinct Carroll Doctrine exception.Such factors as 1) lawful arrest and 2) the reach-lunge-or-grasp perimeter have no bearing at all upon the Carroll Doctrine.Having put aside the immaterial, we turn to the exigency requirement of the material.

A.Exigency:

The circumstances here were the very paradigm of exigency.The appellant first came to the attention of the arresting officer when his car lurched onto the parking lot of the California Inn in Laurel at approximately 11:30 p. m. on Sunday evening, July 3, 1977.Moments later, the appellant was arrested for driving while under the influence.It was only as the person of the appellant was searched as an incident of his arrest and as several other officers arrived with pertinent information, that probable cause to believe that the automobile contained drugs developed over the course of the next five to ten minutes.The critical accumulation of probable cause preceded the automobile search only by minutes.

At the moment when the critical mass of probable cause was reached, the car was on the parking lot of a tavern at approximately 11:40 at night.It was sitting not in a parking space but in a traveled lane.Its motor was running.There arrived upon the scene, moreover, just as the search was commencing, relatives of the appellant who demanded that the car be turned over to them.In terms of a threat to the probable evidence, circumstances could hardly have been more exigent.Chambers v. Maroney, supra;Soles v. State, supra.Exigency having clearly been established, we turn to the proof of probable cause.

B.Probable Cause:

We hold that there was probable cause to believe that the appellant's automobile contained narcotics.No single police observation yields this result.The steady amassing of data, however, initially fragmentary and inconclusive, first yields to the inquiring mind a working hypothesis.As additional data are checked against that hypothesis, a theory emerges offering the probable explanation for the pattern of events.A probability is all that is required.Dawson v. State, 11 Md.App. 694, 707-712, 276 A.2d 680(1971);State v. Swales, 12 Md.App. 69, 277 A.2d 449(1971).

The first significant observation, by Officer Kessler who made the arrest, was that the appellant was intoxicated.Officer Kessler first heard the loud squealing of tires and saw the appellant screech his car to a halt after bouncing over a curb.The appellant was very slow in his responses to the officer and then had trouble finding his license.As he alighted from the car, his balance appeared to be bad.The pupils of his eyes were dilated.Even though it was dark, when Officer Kessler suddenly shined his three-cell flashlight directly into the appellant's eyes at point-blank range, the appellant's pupils did not constrict.At that point, intoxication was probable.The cause of intoxication, however, could have been either alcohol or drugs.Indeed, the appellant concedes the legitimacy of his warrantless arrest for driving while under the influence of either alcohol or drugs.Subsequent observations will not be viewed in a vacuum but within this context of "A" or "B""alcohol or drugs" as we look for clues to eliminate one alternative and to indicate the probability of the other.

As we begin the process of weighing the probabilities between the two alternatives, we have Officer Kessler's initial observation that he smelled no odor of alcohol as the appellant first got out of his car.Later, as they faced each other a few feet apart, Officer Kessler detected a slight odor of alcohol.Standing with Officer Kessler was Officer Fitzgerald who offered the belief within the police department that the appellant was involved in narcotics.Although not of great weight, Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637(1969), this does nudge slightly toward the narcotics theory of intoxication, as between the two realistic alternatives.SeeUnited States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723(1971);State v. Edwards, 266 Md. 515, 522, 295 A.2d 465(1972).

The decisive tie-breaking between competing theories came with the search of the appellant incident to his arrest for the driving infraction.The concession of the appellant, in appellate brief, is helpful in this regard: "The search of the Defendant's person is not questioned in this Appeal."¹Recovered from the appellant's pocket was a white powder wrapped in plain paper.Officer Kessler, with extensive experience and expertise in narcotics investigations, believed that it was cocaine.He found significant, as do we, that there were no commercial markings on the wrapping paper.

Officer Kessler found seven dollars in the appellant's front pocket, a fact of no significance except that it was not co-mingled with the money found in a rear pocket.From the rear pocket was recovered $1550, carefully packaged.There were eight $100 bills, one $50 bill and thirty-five $20 bills, wrapped in groups of five each ($100 each).Although the appellant was reputed to be in the restaurant business, the denominations argue against their being the daily receipts.Nor would a responsible businessman carry such sums, so bundled, around on parking lots late on a Sunday night.Such bundling does indicate a purpose, however, and the strong possibility of a drug deal begins to emerge as a plausible purpose.

At that point, Officer Thomas arrived upon the scene.He had stopped the appellant for apparent "drag racing" only minutes before, had allowed the appellant to drive to get his missing driver's license with Officer Thomas in convoy, and had momentarily lost the appellant when the appellant swerved suddenly onto the parking lot of the California Inn.What Officer Thomas hypothesized as a drag race, however, takes on a different coloration in light of the information then available to Officer Kessler.Putting aside Officer Thomas's interpretation and going directly to Officer Thomas's observations, which he communicated to Officer Kessler, two cars the appellant's and another were observed poised side by side.When Officer Thomas suddenly came upon the scene, the two cars suddenly took off at a fast rate of speed.What Officer Thomas thought was a drag race was susceptible of a different explanation by Officer Kessler based upon his additional knowledge:

"A.Officer Thomas told me that there were two cars together, and that when he had appeared, they both took off as if they were drag racing.When I found the amount of money on Mr. Ehrlich that I did and received the information as to his being involved in the narcotics traffic, I felt that he was probably, or that there was probably a deal going down, and Officer Thomas had interrupted it.

Q.Oh, you mean when someone is drag racing

A.No, sir, that's not what I mean.

Q.What evidence did you...