Manalansan v. State

• Citation: 45 Md.App. 667,415 A.2d 308
• Decision Date: 11 June 1980
• Docket Number: No. 1055,1055
• Parties: James Leo MANALANSAN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 667

45 Md.App. 667

415 A.2d 308

James Leo MANALANSAN v. STATE of Maryland.

No. 1055.

Court of Special Appeals of Maryland.

June 11, 1980.

Gerald A. Kroop, Baltimore, for appellant.

William H. Kenety, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., William A. Swisher, State's Atty. and John Prevas, Asst. State's Atty., for Baltimore City, on brief, for appellee.

Argued before THOMPSON, MOYLAN and WEANT, JJ.

MOYLAN, Judge.

We undertake the consideration of this appeal with the mental set still intact that we first articulated in Dixon v. State, 23 Md.App. 19, 20-21, 327 A.2d 516, 517-518, to the effect that "no aspect of Fourth Amendment litigation has afflicted law enforcement with the yawning credibility gap wrought by inventory searches."

We begin with the bedrock proposition that the inventorying of the contents of an automobile is not a constitutionally-permitted investigative technique. A search for evidence within an automobile may only be undertaken pursuant to a validly issued search and seizure warrant, Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); warrantlessly where there is probable cause to believe that the automobile contains evidence of crime coupled with an exigency excusing the warrant requirement, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); warrantlessly where all or some of the automobile lies within the reach, lunge or grasp of an arrestee, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), and Peterson v. State, 15 Md.App. 478, 292 A.2d 714; or warrantlessly pursuant to valid consent, Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The inventorying of the contents of an automobile, on the other hand, serves a noninvestigative purpose. In Waine v. State, 37 Md.App. 222, 232, 377 A.2d 509, Judge Thompson for this Court analyzed the then recent Supreme Court decision of South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), and well set forth the purpose of the automobile inventory:

"Three purposes which serve to legitimatize warrantless police intrusions into the interior of an automobile following its seizure were listed: (1) protection of the police from danger; (2) protection of the police against claims and disputes over lost or stolen property; and (3) protection of the owner's property while it remains in police custody.

Inventory searches, therefore, are not conducted in order to discover evidence of crime. They are conducted in accordance with police departmental policy to list what is in police custody. Probable cause to seek a search warrant would be irrelevant."

It is, furthermore, clear that in assessing the ultimate constitutional fact of whether a police intrusion into an automobile is a bona fide inventory or a subterfuge for an otherwise unpermitted investigative search, we are required to make our own independent, reflective judgment. Walker v. State, 12 Md.App. 684, 694-695, 280 A.2d 260; Gardner v. State, 10 Md.App. 233, 245, 269 A.2d 186; Reagan v. State, 4 Md.App. 590, 601, 244 A.2d 623. Judge Liss stated this standard of review most recently in Herring v. State, 43 Md.App. 211, 220-221, 404 A.2d 1087, 1092:

"In order to justify the policeman's conduct in this case, we would be required to conclude from our own independent examination of the record that the detective acted in good faith in making the alleged inventory search, and not as a subterfuge to conduct a warrantless search for investigative purposes."

See also Cleckley v. State, 42 Md.App. 80, 399 A.2d 903.

By these criteria, we now assess the convictions of the appellant, James Leo Manalansan, in a nonjury case in the Criminal Court of Baltimore City for 1) simple assault and 2) the unlawful possession of PCP. The appellant challenges the constitutionality of the search for and seizure of the PCP.

Although the appeal is technically from the assault conviction as well as from the unlawful possession conviction, the physical evidence now in question had no bearing on the assault case. The assault victim, Catherine Burke, testified that the appellant assaulted her by spitting in her face. Officer Thomas Gerst also testified that he observed this assault take place in his presence. The arrest for the assault preceded the now questioned search of the appellant's automobile. Since the only point now in issue does not remotely bear upon the evidence of assault, the conviction for assault will be affirmed.

The search that produced the evidence for the unlawful possession case was the proximate result of the arrest for assault. An earlier altercation had occurred between the appellant and Catherine Burke. At the suggestion of another officer, Ms. Burke came to the Southern Police Station to apply for a warrant. Officer Gerst was sitting in his patrol car across the street from the police station when he observed the appellant drive up and call Ms. Burke over to the driver's window. Officer Gerst observed the appellant spit in Ms. Burke's face and then drive off. Ms. Burke entered the police station, came out a short time later and, with her friend, went to get in her car and drive away. Officer Gerst was still observing the scene when the appellant's car returned and double-parked in such a way as to make it impossible for Ms. Burke to get out of her parking place. Officer Gerst started up his own automobile, turned on the blue flashing dome light and moved his car in behind that of the appellant. The appellant moved on down the street and stopped. Officer Gerst approached him and placed him under arrest for assault. Thus far, the narrative is constitutionally unremarkable.

The appellant was still seated behind the wheel when Officer Gerst, from the window, informed him that he was under arrest. As he alighted from his automobile, the appellant took a grey container from his right front shirt pocket and laid it on the front seat of the automobile, toward the passenger's side. After he was out of the automobile, the appellant was placed in handcuffs. The officer then went into the automobile and picked up the container. He opened it and found that it contained a greenish substance which he believed to be PCP. He admitted quite candidly that he seized the container "to find out what was in it." The trial judge ultimately ruled that this seizure and subsequent search was unconstitutional since it was predicated upon the doctrine of search incident to lawful arrest and the item seized was beyond the reach, lunge or grasp of the arrestee. The evidence was, therefore, suppressed. Although this first unconstitutional search is not now before us, it does throw light on the state of mind of Officer Gerst as he proceeded further into the automobile. Additional light was thrown on that state of mind when Officer Gerst was asked if the appellant appeared to be high in any way. Officer Gerst replied that he "appeared to be either drinking or on something." This observation by Officer Gerst, coupled with his discovery of suspected PCP, cannot be ignored as we attempt to resolve the question of whether the automobile search that followed was a mere bona fide listing of personal property or was a search for further evidence of drugs.

The subsequent search produced two hand-rolled cigarettes made from PCP and two clear plastic bags containing PCP. The officer testified that these items were recovered purely inadvertently in the course of a noninvestigative, routine inventory of personal property. The officer's characterization of the search, however, is not dispositive. In dealing with a similar situation, the Court of Appeals in Duncan and Smith v. State, 281 Md. 247, 261, 378 A.2d 1108, 1117, concluded quite otherwise:

"(D)espite the disavowal of the searching officer, in light of the information within the knowledge of the...