Liichow v. State
| Decision Date | 10 September 1980 |
| Docket Number | No. 89,89 |
| Citation | 288 Md. 502,419 A.2d 1041 |
| Parties | Robert Stuart LIICHOW v. STATE of Maryland. |
| Court | Maryland Court of Appeals |
Reginald W. Bours, III, Rockville (Laura K. Leizear, Rockville, on brief), for appellant.
Thomas P. Barbera, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellee.
Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.
Robert Liichow, the petitioner, was convicted in a nonjury trial in the Circuit Court for Washington County on nine counts of possession of several types of controlled dangerous substances. These substances had been kept in a plastic bag which, without a warrant, was seized and then searched by a Maryland State Police trooper while Liichow was moving his possessions from a rented dwelling. The issue presented is whether the warrantless seizure and search of the plastic bag, in the circumstances of this case, violated petitioner's constitutional right to be free from an unreasonable search and seizure.
The following facts were introduced at a pre-trial suppression hearing. On August 11, 1977, in late morning, Liichow and his girlfriend were in bed in a rented house trailer when the girl's former boyfriend, displaying a gun, broke into the trailer, chased Liichow out of the trailer and into a field, and fired a shot at him. Liichow ran to the trailer owner's house and requested that the owner call the police. Trooper Twigg of the Maryland State Police responded.
With the disturbance over, Liichow and his girlfriend assented to the trailer owner's request that they leave the trailer and began packing their possessions into the girlfriend's car. Although Trooper Twigg had left the site while the packing was going on, he returned when the owner reported another disturbance between Liichow and the former boyfriend. The second disturbance had subsided by the time Twigg arrived. After Twigg's arrival for the second time, the police officer told Liichow that he could never come back onto the property. According to Twigg's testimony, Liichow then received Twigg's permission to retrieve some "personal belongings" behind the trailer. When Twigg started to accompany him, Liichow requested that Twigg not follow him. Although Twigg, having been told of the incident with the gun and that Liichow had previously had a knife to defend himself, testified that he was concerned about possible weapons, nevertheless the police officer permitted Liichow to go behind the trailer alone.
Trooper Twigg testified that Liichow, when he returned from behind the trailer, was carrying a large plastic bag, about eighteen inches square, "and he had this bag crumpled together on top of the open end and it was wrapped around his arm and he was holding it with the other arm." Twigg's testimony continued:
Later, Trooper Twigg again explained how he came to see the white tablets:
When Liichow attempted to put the plastic bag under the car seat, Twigg reached into the car and grabbed the bag. As to the nature of the plastic bag, Trooper Twigg testified that it was "not completely clear; it was cloudy." However, the officer stated that he "could see through the plastic bag."
After seizing the plastic bag, Twigg opened it. He stated that the white tablets, which he had previously observed, were in a completely clear "small plastic bag, like a small sandwich bag . . . down inside of the large bag." The plastic bag also contained nontransparent brown paper bags, which in turn contained several types of tablets, capsules and some brown leafy matter. Additionally, the large plastic bag contained personal articles.
Twigg "suspected" that the white dime size tablets, the other tablets and capsules, and the leafy matter, were all controlled dangerous substances. Subsequently, Liichow was taken to the police barracks, and, when tests verified that the tablets, capsules and leafy matter were controlled dangerous substances, Liichow was formally charged.
At the suppression hearing, on cross-examination, Twigg testified that during his ten years as a trooper, he had normally been assigned to traffic patrol. He was questioned concerning the basis for his suspicion that the white tablets were controlled dangerous substances:
"Q. Had you ever seen tablets like that before?
A. I had seen . . .
Q. Had you ever seen tablets like that before in your life?
A. I have.
Q. All right, what were they?
A. CDS-controlled dangerous substance.
Q. What CDS?
A. I'm not familiar with the names, the specific names or anything.
Q. Trooper, isn't it true that you never made a narcotic arrest in your life, except two or three times for marijuana.
A. For marijuana, right.
Q. In all your ten years?
A. I have been in on investigations on other, on other narcotic arrests, assisting other Troopers.
Q. Now, (tell) the Court what those white tablets were? What did you suspect they were?
A. They, I suspected they were some type of controlled dangerous substance.
Q. What type?
A. Beyond me.
Q. You had no idea what those type of tablets were and isn't that the truth?
A. I didn't know exactly what they were, but I suspected them to be . . .
Q. But you suspected them based on what?
A. From my knowledge as the training I received on my job, the training, the booklets, classroom training on narcotics . . .
Q. Based on your training and your knowledge, what did you suspect those white tablets were?
A. I could not say exactly what they were.
Q. You couldn't say exactly . . .
A. I knew they were some type of controlled dangerous substance.
Q. Well, what type?
Shortly thereafter, the testimony continued as follows:
"Q. Did you know at that time whether or not they were prescription drugs or not?
A. At that time, no.
Q. Did you know at that time whether or not they were patent medicine? Do you know what I mean when I say 'patent medicine,' don't you? In other words counter medicine?
A. I didn't know what they were other than I suspected them to be CDS, because they did appear, pictures of other tablets that I have seen in books and the training we got, they looked similar to other tablets that I have seen. They weren't . . . that is the only thing I can say."
On his own behalf, Liichow testified that the plastic bag was opaque. Further, he testified that all of the drugs were completely inside a brown paper bag, which was inside the plastic bag. Thus, he contended that there "was nothing visible" and that it was impossible to see anything in the bag.
The trial judge, crediting Twigg's testimony, concluded that Twigg had probable cause to seize and search the bag. The court denied the motion to suppress the evidence. At the subsequent trial, the parties submitted the case to the trial court solely on the basis of the transcript of the pre-trial suppression hearing and an earlier preliminary hearing, and Liichow was convicted.
In an unreported opinion, the Court of Special Appeals affirmed, holding that the circumstances were sufficient to satisfy the "automobile exception" to the requirement that searches and seizures be performed pursuant to a warrant. The intermediate appellate court concluded that, because Liichow was leaving the area, exigent circumstances were established. As to the probable cause, the Court of Special Appeals noted that the trial court, as the finder of fact charged with resolving credibility and disputed factual issues, was entitled to believe Twigg's testimony. Consequently, the intermediate court concluded that Twigg's having seen the white tablets, in addition to the other circumstances in the case, constituted probable cause to believe that the plastic bag contained contraband.
This Court then granted Liichow's petition for a writ of certiorari which presented the following questions:
2. Whether the observations of the police officer were tainted by his conduct in requiring Petitioner to remove his personal belongings from leased premises without an eviction notice or formal legal proceedings of any kind.
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