Gee v. State

• Decision Date: 29 October 1981
• Docket Number: No. 137,137
• Citation: 435 A.2d 1387,291 Md. 663
• Parties: Elmore GEE v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 663

291 Md. 663

435 A.2d 1387

Elmore GEE v. STATE of Maryland.

No. 137.

Court of Appeals of Maryland.

Oct. 29, 1981.

Claudia A. Cortese, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Deborah K. Handel, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

RODOWSKY, Judge.

Appellant Elmore Gee (Gee) was convicted of grand larceny in the Circuit Court for Prince George's County. His conviction was affirmed by the Court of Special Appeals in an unreported opinion (Gee v. State, No. 97, Sept. Term, 1980, decided September 26, 1980). We granted Gee's petition for certiorari to review the question: "Did the court below err in admitting into evidence the products of an illegal search and seizure of petitioner's wallet?" Gee contends that his Fourth Amendment rights were violated: (1) by the initial search of his wallet by officers of the Metropolitan (District of Columbia) Police Department; and (2) by a subsequent examination by an officer of the Prince George's County, Maryland, Police Department of the wallet's contents, while they were in the custody of the D. C. police. We do not accept these contentions for the reasons hereinafter set forth.

On August 1, 1978 Officer Stephen M. Shedeck, of the Metropolitan Police Department, and his partner, Officer William S. Welch, were on duty in plainclothes in an unmarked police car. About noon, at 11th and U Streets, they observed a Thunderbird, and a pursuing Chevrolet, run a red light. The officers activated the siren and flashing grill lights on their vehicle and gave chase. The Chevrolet stopped and the officers were advised by its occupants that they had just been "robbed" by the people in the Thunderbird. The police resumed the chase of the Thunderbird which reached speeds of between 75 and 85 mph before it went out of control and struck a brick wall at 11th and Clifton Streets, Northwest. Officer Shedeck went to the driver's side of the Thunderbird where he observed a wallet lying on the seat of the car between the legs of the driver, who was later identified as the appellant, Elmore Gee. Officer Shedeck took Gee out of the Thunderbird and Officer Welch took care of the passenger. The wallet was left lying on the car seat at this time. Then the persons in the Chevrolet came to the accident scene. One of them told Officer Shedeck that, earlier that morning, Gee and his companion in the Thunderbird had obtained money and food stamps from the complainant by a flim-flam in which Gee had flashed a special policeman's badge in a wallet. Gee and his companion were placed under arrest for grand larceny by trick. Thereupon Officer Shedeck made a search of the Thunderbird and seized a number of items, including the wallet on the front seat. That wallet contained a special policeman's badge and a number of cards. Officer Shedeck, at the scene, went through every card in the wallet, searching for "(n)othing particular." The wallet and its contents were left by Officer Shedeck with Officer Welch while Officer Shedeck took Gee and his companion to the hospital. Several hours later Officer Welch returned custody of the articles to Officer Shedeck, who in turn transferred custody of them to the property custodian of the Metropolitan Police Department.

Previously, on April 28, 1979, Panala Wilson of Prince George's County had been victimized by a flim-flam in which she had been shown a special policeman's badge. Mrs. Wilson gave the police a description of the offenders and the license number of the car which they had used. The trail led to the appellant. It is the theft from Mrs. Wilson which is charged in the instant matter.

On August 3, 1978 a Prince George's County policeman went to the office of the property custodian of the Metropolitan Policeman Department and there examined Gee's wallet and its contents. That wallet, as well as a special policeman's badge, a business card and certain temporary Maryland driver's licenses which it contained, were introduced in evidence in the instant proceedings after appellant's motion to suppress had been denied.

I

Appellant does not challenge the validity of the initial seizure of the wallet by the D. C. police. But it is appellant's position that, once the wallet was in the custody of Officer Shedeck, it could not validly be searched absent a warrant, because Gee enjoyed a reasonable expectation of privacy in his wallet, as a container. Appellant relies on Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) and Liichow v. State, 288 Md. 502, 419 A.2d 1041 (1980). However, we need not decide, under the "container" cases, whether hairs are to split between holding this claspless wallet in a folded condition and unfolding it to bring the badge in plain view, or between the unfolded wallet and its compartments containing the business card and licenses. This is because the instant case is controlled by New York v. Belton, --- U.S. ----, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) which was decided after argument in this Court.

Belton involved the police stop of a speeding car on the New York Thruway. The policeman smelled marijuana and observed an envelope marked "Supergold," which he associated with marijuana, on the floor of the car. He ordered its four male occupants out of the car and placed them under arrest for unlawful possession. "He patted down each of the men and 'split them up into four separate areas of the Thruway at this time so they would not be in physical touching area of each other.' " Id. at ----, 101 S.Ct. at 2862, 69 L.Ed.2d at 772. Then the policeman searched the passenger compartment of the car. On the back seat he found a leather jacket belonging to Belton. He unzipped one of the pockets of the jacket and discovered cocaine. The Court of Appeals of New York held that the warrantless search of the zippered pockets of the unaccessible jacket violated the Fourth Amendment. ¹ The Supreme Court of the United States reversed. It established a "bright line" rule.

In so doing, the Court clarified the application of the rule in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) to the search of the interior and contents of an automobile incident to the lawful custodial arrest of its recent occupants. It said (---- U.S. at ----, 101 S.Ct. at 2864, 69 L.Ed.2d at 774-75):

When a person cannot know how a court will apply a settled principle to a recurring factual situation, that person cannot know the scope of his constitutional protection, nor can a policeman know the scope of his authority. While the Chimel case established that a search incident to an arrest may not stray beyond the area within the immediate control of the arrestee, courts have found no workable definition of "the area within the immediate control of the arrestee" when that area arguably includes the interior of an automobile and the arrestee is its recent occupant. Our reading of the cases suggests the generalization that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within "the area into which an arrestee might reach in order to grab a weapon or evidentiary item." Chimel, supra, at 763 (, 89 S.Ct. at 2040, 23 L.Ed.2d at 694). In order to establish the workable rule this category of cases requires, we read Chimel's definition of the limits of the area that may be searched in light of that generalization. Accordingly, we hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.

It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach. United States v. Robinson (414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427), supra ; Draper v. United States, 358 U.S. 307 (, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959)). Such a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have. (Footnotes omitted.)

Belton concludes with the following summary (id. at ----, 101 S.Ct. at 2865, 69 L.Ed.2d at 776);

It is not questioned that the respondent was the subject of a lawful custodial arrest on a charge of possessing marihuana. The search of the respondent's jacket followed immediately upon that arrest. The jacket was located inside the passenger compartment of the car in which the respondent had been a passenger just before he was arrested. The jacket was thus within the area which we have concluded was "within the arrestee's immediate control" within the meaning of the Chimel case. The search of the jacket, therefore, was a search incident to a lawful custodial arrest, and it did not violate the Fourth and Fourteenth Amendments. (Footnote omitted.)

In the instant matter it is not even suggested that Gee's custodial arrest was other than lawful. The search of the passenger compartment of Gee's car was contemporaneous with his arrest. There is no distinction of any legal significance between the zippered pocket of Belton's jacket and Gee's wallet. Belton is dispositive. ² The search of Gee's wallet by the Metropolitan police did not violate the Fourth and Fourteenth Amendments.

II

Appellant next contends that the Prince George's County police should have first obtained a warrant before inspecting Gee's wallet in the District of Columbia while it was in the custody of the Metropolitan...