Malcolm v. State

• Decision Date: 01 September 1987
• Docket Number: No. 68,68
• Citation: 314 Md. 221,550 A.2d 670
• Parties: Jeffrey Wayne MALCOLM v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 221

314 Md. 221

550 A.2d 670

Jeffrey Wayne MALCOLM v.STATE of Maryland.

No. 68, Sept. Term, 1987.

Court of Appeals of Maryland.

Dec. 1, 1988.

Joseph A. Dugan(Dugan & McGann, P.A., on the brief), College Park, for appellant.

Norman L. Smith, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

BLACKWELL, Judge.

The issue here is whether the federal and state constitutions prohibit a warrantless automobile search based on an informant's tip which has been extensively investigated by the police.We conclude that the federal and state constitutions do not bar such action where the tip is credible under the "totality of the circumstances" test of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527(1983).¹

I.

Officer Dennis R. Gibbins(Gibbins) of the Montgomery County Police Department received information that Ricky Lewis(Lewis) would be participating in the manufacture and distribution of PCP.The tip indicated that Lewis 1) lived in a redbrick apartment on Dalamar Street, 2) drove his girlfriend Vicky's bright yellow Mustang, which had molding missing from the left front door, 3) had traveled to Tennessee and obtained chemicals for a "cook of PCP," and 4) would have PCP ready for distribution on August 20, 1985.The informant, whose identity was known to the police but kept confidential at trial, had a criminal record and had not given any information to the police prior to this tip.

In corroborating this information, Gibbins went to Dalamar Street where he found a yellow Mustang with molding missing from the left front door.The car was registered to Victoria Whitman.Gibbins also learned that a previous tip to the police had identified Lewis as a PCP manufacturer, though the tip had not been acted upon.Moreover, Lewis' criminal history included a prior arrest and a felony conviction involving PCP sometime after 1980.

Gibbins observed Lewis in the company of Jeffrey Wayne Malcolm(Malcolm) and Richard Manco(Manco).The officer discovered that Malcolm had "a prior history of PCP manufacture in Howard and Prince George's County" and had a prior address in Tennessee.Manco had had several complaints filed against him relating to PCP distribution.

On the morning before the predicted drug distribution, Lewis and Malcolm left the Dalamar apartment with a blue vinyl suitcase and got into a pick-up truck owned by Malcolm's brother and bearing Virginia license plates.Gibbins and his partner Mancuso traced the suspects to a local motel that night.Mancuso observed them "looking around quite distinctively in the parking lot" before they entered the motel with several grocery bags.The motel phone records indicated that the suspects dialed a number which the police then believed belonged to Michael Sideman, a former defendant in a controlled substance case.

Gibbins later observed the suspects participating in what he described as counter-surveillance driving.In the first instance, the officer followed the suspects until they made a U-turn.In the second instance, the suspects sat through two or three cycles of a traffic light with no apparent mechanical trouble; they then drove in one direction--only to make a U-turn, drive into two shopping centers and then leave.²When Lewis and Malcolm left with the suitcase in the pick-up truck the next morning, the police searched the motel room and found no evidence of narcotics.Based on the informant's tip, the police corroboration of that tip, the countersurveillance driving of the suspects, their drug histories, their checking out of the motel, their driving a vehicle bearing out-of-state tags, the risk of losing the truck in the heavy morning traffic and the fact that the day for distribution had arrived, the police decided to stop the vehicle.³Surrounded by several officers, the suspects were removed at gun-point from the truck and patted down.The police then opened the back of the truck which began to emit a strong smell resembling benzine or ether.According to Gibbins' testimony, such a smell is indicative of PCP.The police discovered PCP-treated parsley in the suitcase and arrested Malcolm and Lewis.

Prior to trial, Malcolm moved to suppress the contents of the suitcase.In denying that motion, Judge Messitte reasoned that the police had probable cause to search the vehicle under the Aguilar- Spinelli test.⁴SeeAguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723(1964);Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637(1969).Malcolm was convicted of possession with intent to distribute a controlled dangerous substance and other related offenses.Judge Raker sentenced him to twenty years without parole pursuant to Maryland Code(1957, 1982 Repl. Vol., 1985 Cum.Supp.), Article 27, § 286(b)(2).

In appealing his conviction, Malcolm argued that the police lacked probable cause under the Aguilar- Spinelli test and that, therefore, the improperly seized evidence should have been excluded at trial.Malcolm also challenged the validity of his sentence based on the allegedly vague language of section 286(b)(2).The Court of Special Appeals affirmed both Malcolm's conviction and his prison term.Malcolm v. State, 70 Md.App. 426, 521 A.2d 796(1987).

Although we affirm Malcolm's conviction based on a totality of the circumstances test, we vacate his sentence and remand his case to the trial court for sentencing not inconsistent with this opinion.

II.The Warrant Requirement

Under the federal and state constitutions, the government is generally required to obtain a magistrate's warrant in order to conduct a valid search.SeeU.S. Const. amend. IV;⁵Md. Const. Declaration of Rights, art. 26.⁶However case law recognizes public policy exceptions to the warrant requirement, as in the case of automobile searches.Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543(1925);see alsoHerod v. State, 311 Md. 288, 534 A.2d 362(1987);England v. State, 274 Md. 264, 334 A.2d 98(1975);Mobley v. State, 270 Md. 76, 310 A.2d 803(1973), cert. denied sub nom., King v. Maryland, 416 U.S. 975, 94 S.Ct. 2003, 40 L.Ed.2d 564(1974);cf.Duncan v. State, 281 Md. 247, 378 A.2d 1108(1977)(discussing various exceptions to the warrant requirement in the context of automobiles).The rationale for permitting a warrantless automobile search in moments of exigency is that 1) the mobility of the vehicle creates a greater need to search without delay and 2) individuals have a lesser reasonable expectation of privacy in their cars as opposed to their homes.⁷

III.The Test for Probable Cause

Under the fourth amendmentandarticle 26, ⁸the state must have probable cause in order to legally conduct a search of a private citizen, his dwelling or his possessions.Probable cause for a search is the "fair probability that contraband or evidence of a crime will be found in a particular place."Gates, 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548;see alsoPotts v. State, 300 Md. 567, 575, 479 A.2d 1335, 1340(1984).

In the past, the test for probable cause based on an informant's tip consisted of the two-pronged analysis first enunciated in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723(1964).There, the Supreme Court required that the police establish 1) the basis of the informant's knowledge and 2) the veracity of the tip, i.e. the credibility of the informant or the reliability of the informant's information.Aguilar, 378 U.S. at 114, 84 S.Ct. at 1514, 12 L.Ed.2d at 729.⁹

Through the guidelines of the two-pronged test, the Court sought to ensure that a magistrate would not merely serve as a rubber stamp for police conclusions as to probable cause; the Court reasoned that the judgment of a neutral and detached magistrate is more desirable than an " 'officer engaged in the often competitive enterprise of ferreting out crime.' "Aguilar, 378 U.S. at 113, 84 S.Ct. at 1513, 12 L.Ed.2d at 727(quotingJohnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436, 440(1948)).So too, in the warrantless situation, the two-pronged test heavily restricted police from acting on unfounded rumor.However the structured nature of the two-pronged approach also undermined law enforcement by eliminating valid tips which could not meet one of the Aguilar- Spinelli prongs.The prongs' independent channelling of the veracity and basis of knowledge standards meant that a deficiency in one could not be made up through a surplus in the other.¹⁰Thus the Court abandoned the two-pronged test in favor of the "totality of the circumstances" approach.Gates, 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548;Massachusetts v. Upton, 466 U.S. 727, 732, 104 S.Ct. 2085, 2087, 80 L.Ed.2d 721, 726(1984)("We did not merely refine the 'two-pronged test.'We rejected it....").

Although resting in part on the desire to promote the use of search warrants, Gates also emphasized the need to utilize valid informants' tips which do not fit the rigid requirements of the two-pronged approach.SeeGates, 462 U.S. at 238, 103 S.Ct. at 2332, 276 L.Ed.2d at 548("While a conscientious assessment of the basis for crediting such tips is required by the Fourth Amendment, a standard that leaves virtually no place for anonymous citizen informants is not.").The need for valid tips exists equally in the context of warrantless searches as in that of searches based on warrants.

We find that law enforcement needs in the area of warrantless searches are better forwarded through a balancing test, than through a needlessly rigid two-pronged approach.SeePotts v. State, 300 Md. 567, 479 A.2d 1335(1984)(applying Gates under the state and federal constitution to a search predicated on a warrant);Brown v. State, 57 Md.App. 186, 469 A.2d 865(1984)(noting poor experience with the...