Malcolm v. State

• Decision Date: 01 September 1986
• Docket Number: No. 750,750
• Citation: 70 Md.App. 426,521 A.2d 796
• Parties: , 55 USLW 2535 Jeffrey Wayne MALCOLM v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 426

70 Md.App. 426

521 A.2d 796, 55 USLW 2535

Jeffrey Wayne MALCOLM v. STATE of Maryland.

No. 750, Sept. Term, 1986.

Court of Special Appeals of Maryland.

March 5, 1987.

Appeal from the Circuit Court for Montgomery County; Irma S. Raker, judge.

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

Norman L. Smith, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Baltimore, Andrew L. Sonner, State's Atty. for Montgomery County and I. Matthew Campbell, Asst State's Atty. for Montgomery County, on the brief, Rockville, for appellee.

Argued before MOYLAN, GARRITY and ROBERT M. BELL, JJ.

MOYLAN, Judge.

Except for a trivial contention dealing with sentencing, this appeal by Jeffrey Wayne Malcolm rises or falls with the admissibility of the physical evidence. He was convicted of possession of PCP with intent to distribute. The physical evidence was obtained in the course of a Carroll Doctrine search of a pickup truck registered to and driven by the appellant. The interesting question raised by this appeal is that of whether there is a single standard for assessing probable cause or two separate standards--one for probable cause in a warrant application and another, stricter standard for probable cause for warrantless activity. We hold there is but one.

Following the denial of his suppression motion before Judge Peter J. Messitte, in the Circuit Court for Montgomery County, the appellant was convicted by a Montgomery County jury, presided over by Judge Irma S. Raker, of possession with intent to distribute and related offenses. Upon this appeal, he raises essentially four contentions:

1) That he was unlawfully arrested and that all physical evidence should, therefore, be suppressed as the "fruit of the poisonous tree";

2) That whatever the test to be employed, the police failed to establish probable cause that the pickup truck contained evidence of crime;

3) That Judge Messitte erred in assessing probable cause by the looser "totality of circumstances" standard of Illinois v. Gates rather than by the more highly structured two-pronged test established by Aguilar v. Texas and Spinelli v. United States; and 4) That Judge Raker misinterpreted Article 27, 286(b)(2) in sentencing the appellant to twenty years without possibility of parole.

We do not consider the merits of the appellant's first claim because the claim, even if true, is immaterial. The search of the pickup truck that produced the evidence was based exclusively upon the Carroll Doctrine. Whatever happens, good or bad, to the driver or other occupants of a vehicle is an extraneous consideration in assessing the validity of a Carroll Doctrine search. If the appellant believes that he was mistreated by way of illegal arrest or by way of excessive force, he may sue the police or seek appropriate redress in some appropriate forum. The merits of such a complaint, however, are utterly immaterial to the validity of a Carroll Doctrine vehicle search. Without meaning to appear unduly callous but to make the point as forcefully as we know how, it is on the limited question of a Carroll Doctrine search a matter of sublime indifference whether the police treated the vehicle driver with utmost courtesy or manhandled him unconscionably. It is, of course, a matter of concern in other regards, but on the narrow question of the Carroll Doctrine, it is extraneous. If the search in question were being justified as a search incident to lawful arrest, the propriety of the arrest would be not only material but critical. Under Carroll Doctrine analysis, by way of contrast, the question of arrest--good, bad, or nonexistent--is simply not one of the doctrinal elements.

The appellant's second contention is that even if he is stuck with the "totality of circumstances" approach of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), probable cause was not established, even under that looser standard, for the vehicle search in issue. The pickup truck was warrantlessly searched under the so-called "automobile exception" to the warrant requirement established by Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The Carroll Doctrine requires that there be 1) probable cause to believe that the vehicle contains evidence of crime and 2) an exigency compelling an immediate search. There is in this case no question as to the exigency. Everything hinges upon the establishment of probable cause. Even before Illinois v. Gates, probable cause had been articulately described in Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949):

"In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act."

Assuming that the Illinois v. Gates standard is applicable to the warrantless determination of an officer (a point we will consider formally when we deal with the appellant's next contention), it is clear that the task of the officer "is simply to make a practical, common-sense decision whether, given all the circumstances ... there is a fair probability that contraband or evidence of a crime will be found in a particular place." 462 U.S. at 238, 103 S.Ct. at 2332. Our duty, as a reviewing court, is "simply to ensure that the [officer] had a 'substantial basis for ... conclud[ing]' that probable cause existed." 462 U.S. at 238-239, 103 S.Ct. at 2332. By that standard, we hold that probable cause was established.

It was at about 10:30 a.m. on August 20, 1985, that the pickup truck was stopped in the general vicinity of Georgia Avenue in Montgomery County. The bulk of the probable cause had been gathered by police during the immediately preceding 18-to-24 hours. The appellant was arrested along with Ricky Lewis. Ricky Lewis had initially been the prime target of the investigation. Ricky Lewis was indicted along with the appellant but, on the day of their scheduled joint trial, failed to appear. A bench warrant was issued for his arrest; he has not yet been apprehended.

At some undetermined time before the evening of August 19, Officer Dennis R. Gibbons, of the Narcotics Section of the Montgomery County Police Department, received information from an unnamed informant. The informant was from the criminal milieu and had never before given information to the police. The information relayed by the informant was that Ricky Lewis had gone to Tennessee to obtain chemicals for a "cook of PCP." The informant indicated that the chemicals from Tennessee had been obtained and that the PCP would be ready for street distribution sometime on August 20.

Although the informant did not know Lewis's precise street address, he knew that he lived in a red brick apartment on Dalmar Street. He stated further that Lewis was driving Lewis's girlfriend's car, that the girlfriend's name was Vicky, and that the car was a bright yellow Mustang with the door molding off the left front door.

Officer Gibbons proceeded to Dalmar Street to verify what he could. He located a yellow Mustang with the molding off the left front door. It was parked in front of 32 Dalmar Street, which turned out to be the address of Ricky Lewis. The yellow Mustang, moreover, was listed to a Victoria Whitman. That corroboration, albeit of noncriminal detail, was quantitatively and qualitatively comparable to that found adequate by the Supreme Court in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), a case that also involved a warrantless search and seizure.

A persuasive clue, by way of corroborating the tip that Ricky Lewis was involved in preparing PCP, was the cast of characters and their shady histories. Thirty-two Dalmar Street was placed under surveillance. Three individuals were observed leaving that address together. They were Ricky Lewis, Richard Manco, and the appellant. A local records check revealed an anonymous complaint that Ricky Lewis was manufacturing PCP. A subsequent check with the Maryland criminal history computer showed that Lewis had been convicted in Prince George's County on a felony charge involving PCP. There was also a local file on Richard Manco, containing prior complaints regarding the distribution of PCP. Once the identity of the appellant was discovered, a computer check on him revealed a prior history of PCP manufacturing in Howard and Prince George's Counties. When three underworld characters, with criminal histories of PCP manufacture and PCP distribution, come together, the tip that PCP activity is afoot takes on credibility.

Ricky Lewis was carrying a medium-sized, blue vinyl suitcase. That is completely innocuous standing alone. It is also, however, compatible with the delivery of chemicals from Tennessee to prepare a batch of PCP. Richard Manco went to a Ford pickup truck and drove out of the story. Ricky Lewis followed the appellant to what turned out to be the appellant's tan and brown pickup truck. The two of them drove off. The pickup truck was registered to someone named Malcolm in McVal, Virginia. Jumping briefly ahead of the story, a subsequent check at the registration desk of the nearby Holiday Inn showed Room 600 listed to a Jeff Malcolm of McVal, Virginia. The registration of the vehicle, on the other hand, was to a Malcolm with a different first name. Though only a scintilla, it nonetheless bears noting that there is in the criminal milieu an elusive fluidity when it comes to naming patterns. In any event, Officer Gibbons followed the pickup truck for approximately seven blocks, until the pickup truck executed an unexpected U-turn. Rather than "burn" the surveillance, Officer Gibbons discontinued pursuit. Again, although of minor consequence standing alone, a possibly evasive driving maneuver takes on coloration in conjunction with other events. The sudden...