Howell v. State

• Decision Date: 13 July 1973
• Docket Number: No. 769,769
• Parties: Paul Monroe HOWELL v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 429

18 Md.App. 429

306 A.2d 554

Paul Monroe HOWELL v. STATE of Maryland.

No. 769.

Court of Special Appeals of Maryland.

July 13, 1973.

Certiorari Granted Sept. 21, 1973.

Gary Huddles, Assigned Public Defender, Baltimore, for appellant.

Emory A. Plitt, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Samuel A. Green, Jr., State's Atty., for Baltimore County and Jean Spotts, Asst. State's Atty., for Baltimore County on the brief, for appellee.

Argued before ORTH, C. J., and MOYLAN and CARTER, JJ.

MOYLAN, Judge.

The appellant, Paul Monroe Howell, was convicted in the Circuit Court for Baltimore County by Judge Walter R. Haile, sitting without a jury, of daytime housebreaking, assault with intent to murder and possession of marihuana. Upon this appeal, he raises four contentions:

(1) That his in-court identification by the victim of the assault and housebreaking should have been suppressed as the product of an impermissibly suggestive pretrial photographic viewing;

(2) That a State's witness was permitted to testify after having violated a sequestration order;

(3) That inculpatory oral admissions were induced by promises and should not have been received into evidence; and

(4) That the marihuana was the fruit of an unconstitutional search and seizure.

The Search Incident

We shall consider first the search and seizure which produced the contraband marihuana. The breaking and entering of the home of Adrian Merryman and the concomitant assault upon Mr. Merryman occurred on May 16, 1972. On May 18, Corporal James Raymon, of the Baltimore County Police Department, showed a series of photographs to Mr. Merryman, from which Mr. Merryman selected a photograph of the appellant as his assailant. Corporal Raymon applied for and received an arrest warrant for the appellant. A lookout for the appellant and his automobile was broadcast via police teletype.

On the basis of the teletyped lookout, particularly upon the basis of the description of the appellant's automobile, including the license tag number, three Baltimore City detectives detained the appellant and his automobile upon the parking lot of a drive-in restaurant at 11805 Reisterstown Road, just across the Baltimore County line from Baltimore City, at approximately 12:50 p. m. on May 19. Corporal Raymon was immediately notified and had responded to the scene by approximately 1 p. m. The appellant was leaning against his automobile on the driver's side. A female companion was seated on the right front seat. Corporal Raymon arrested both the appellant and his female companion. Corporal Raymon searched the automobile and recovered from beneath the right front seat a package of marihuana. At issue is the legitimacy of that search and seizure.

In many cases where a motorist is arrested and his car is searched, a search incidental to a lawful arrest under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), and a search pursuant to the 'automobile exception' under Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), may overlap. They do not, however, necessarily overlap. A search may at times be good upon both theories, at times good upon either one of the theories but not upon the other, and at times good upon neither theory. In the case at bar, the search of the automobile cannot be predicated upon the 'automobile exception' because of the failure of Corporal Raymon to establish probable cause to believe that the automobile contained evidence of crime, one of the two necessary preconditions for the invocation of this exception to the basic proposition that all searches carried out without a warrant are per se unreasonable. Carroll v. United States, supra; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

If the search here is to be found legitimate, it must be as a valid search incident to a lawful arrest under Chimel. Whatever form of detention the appellant may have been under during the approximate ten-minute period between being stopped by the Baltimore City detectives and the arrival of Corporal Raymon, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), the appellant was formally arrested by Corporal Raymon moments after the corporal arrived upon the scene. There is no question but that the search was sufficiently contemporaneous with the arrest to satisfy the strictures of Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964).

Nor does the fact that the detaining detectives may have executed a 'frisk' or external 'pat down' of the person of the appellant for weapons exhaust anticipatorily the right to make a search incident to a lawful arrest. The search contemplated by the 'search incident exception' is more intensive in nature than that contemplated by a mere 'frisk' for weapons under Terry and Sibron. It has as its purpose not simply the interest of protecting the arresting officer and depriving the prisoner of potential means of escape, Closson v. Morrison, 47 N.H. 482 (1867), but also the interest of preventing 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). And see People v. Chiagles, 237 N.Y. 193, 196, 142 N.E. 583 (1923) (opinion by Cardozo, J.); United States v. Rabinowitz, 339 U.S. 56, 72, 70 S.Ct. 430, 94 L.Ed. 653 (1950) (dissenting opinion by Frankfurter, J.); Brown v. State, 15 Md.App. 584, 292 A.2d 762. ¹

The question at bar is rather the permissible scope-the range in space-the perimeter-of an admittedly proper 'search incident.' Adopting the analysis of Justice Frankfurter in his series of dissents in United States v. Rabinowitz, supra; Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); and Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946), Chimel made clear that a proper search incident extends not only to the person of the arrestee but to that area within his 'immediate physical control.' 'Immediate physical control' and 'immediate physical surroundings' are defined as that area 'which may fairly be deemed to be an extension of his person.' That search perimeter is described by Chimel as being the area within the 'reach,' within the 'grasp,' within the 'lunge' of the arrestee.

The arrest of a motorist does not automatically confer the right to search his automobile, or any part of it, as a necessary incident of the arrest. See Martin v. State, 18 Md.App. 112, 305 A.2d 197, where the arrest of a suspect in the middle of the street was held not to confer the right to search his automobile parked at a curb half-a-street width away. And see Soles v. State, 16 Md.App. 656, 299 A.2d 502, where the arrest of a suspect behind the wheel was held not to confer the right to search a locked trunk as an incident of the arrest. On the other hand, see Peterson v. State, 15 Md.App. 478, 292 A.2d 714, where the arrest of four persons braced up against an automobile was held to confer the right to search the interior of that automobile as an incident of the arrests. The automobile of an arrested motorist is neither automatically included in whole, automatically included in part and excluded in part, nor automatically excluded in whole from the permissible search perimeter. Rather must each search be analyzed on a case-by-case basis, bearing always in mind the purposes giving birth to the 'search incident exception' as one measuares the perimeter necessary to serve those purposes. The area within 'the lunge, the grasp, or the reach' of the arrestee-the area which may be deemed 'a fair extension of his body'-may intrude upon some, or even all, automobile space just as it intrudes upon other, non-automobile space. Conversely, it may not. The word 'automobile' is not a talisman, for purposes of automatic inclusion or exclusion. It is simply so much cubic footage of space through which a perimeter measured from an arrestee-be he motorist, passenger or pedestrian-may or may not pass.

In the case at bar, the arrestee, not yet thoroughly searched, was standing, unshackled, by the door of his automobile. His female companion, who was also arrested, was seated upon the right front seat. The area beneath the right front seat, from which the marihuana was recovered, was, we hold, within the legitimate search perimeter emanating from the appellant. Peterson v. State, supra, 489-490, 292 A.2d 714. It was within the range from which a weapon could easily have been recovered to endanger the officer or to make good an escape. It was within the range from which readily destructible evidence could easily have been grabbed and destroyed. It was a proper 'search incident' to a lawful arrest. There was, therefore, no constitutional impediment to the introduction into evidence of the seized marihuana.

The Photographic Viewing

The remaining contentions can be dealt with briefly. The appellant predicates his argument that the in-court identification of him by Mr. Merryman should have been suppressed upon the foundation...