Preston v. State
| Decision Date | 01 November 2001 |
| Docket Number | No. 1956,1956 |
| Parties | Brian Lewis PRESTON v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Allen E. Burns, Asst. Public Defender (Stephen E. Harris, Public Defender on the brief), Baltimore, for appellant.
Steven L. Holcomb, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Sandra A. O'Connor, State's Atty. for Baltimore County, Towson, on the brief), for appellee. Submitted Before SALMON, JAMES R. EYLER and KRAUSER, JJ.
On April 12, 2000, a McDonald's fast food restaurant located on Eastern Avenue in Essex, Baltimore County, Maryland, was robbed by a lone gunman wearing a ski mask. Two days after the robbery, appellant, Brian Preston, was arrested for the McDonald's robbery pursuant to a valid arrest warrant. The arrest was made as appellant arrived at work and just after he had alighted from a Plymouth Neon automobile (hereinafter "the Plymouth"). Shortly after his arrest, appellant was taken to police headquarters, and the Plymouth was towed to a "crime lab/garage" owned by Baltimore County, where it was searched.
As a result of searching the passenger compartment of the Plymouth, the police found several items that incriminated appellant:
1. A twenty-two caliber Beretta handgun, later identified as the weapon used in the robbery;1
2. A blue knit ski mask;
3. A bag containing deposit slips, register receipts, petty cash vouchers, monopoly games, and other items belonging to McDonald's. The dates on these items ranged between March 31 and April 11, 2000.
Prior to trial, appellant filed a motion to suppress the items recovered from the Plymouth. After an evidentiary hearing, the motions judge ruled that the warrantless search of the Plymouth at the police garage was valid as a search incident to appellant's arrest. Appellant was thereafter convicted by a jury of the armed robbery of the McDonald's as well as two related charges: first degree assault and use of a handgun in the commission of a crime of violence.
1. Did the lower court err in denying appellant's motion to suppress the evidence found in the Plymouth's passenger compartment?
2. Assuming, arguendo, that the search should have been ruled invalid, was the denial of the motion to suppress harmless beyond a reasonable doubt?
We answer the first question in the affirmative, the second in the negative, and reverse.
On the day following the robbery of the McDonald's, Detective Joseph Caskey of the Baltimore County Police Department questioned Shirlita Jackson, the McDonald's manager. During interrogation, Ms. Jackson said that she and appellant had conspired to commit the armed robbery and that the robbery plan was originated by appellant. According to Ms. Jackson's confession, appellant executed his plan by using a silver gun along with a black gun in robbing her (and two other McDonald's employees) on the morning of April 12, 2000. Based on the information provided by Ms. Jackson, a warrant for appellant's arrest was issued.
On April 14, 2000, several Baltimore County police officers were waiting for appellant to show up for work at a restaurant located in the White Marsh mall. Appellant arrived for work at 9 a.m. driving the Plymouth. He opened the door of the vehicle and stood, but before he could close the car door he was arrested.
The police merely "glance[d]" at the interior of the Plymouth but did not search it while it was on the White Marsh parking lot. Instead, the vehicle was towed to the crime lab/garage and searched. Detective Caskey testified as follows:
At the time the Plymouth was towed to the police garage, the police knew that the vehicle was owned by Brenda Marcus, who was the mother of appellant's girlfriend.
The only testimony produced at the suppression hearing as to when the Plymouth was searched was provided during cross-examination of Detective Caskey. After establishing that he was not present during the search of the Plymouth, Detective Caskey was asked by defense counsel:
The property sheets were not admitted into evidence at the suppression hearing.
Detective Todd Ford, who was one of the three officers who searched the Plymouth, testified that a duffle bag was found on the front passenger seat of the Plymouth. Detective Ford could not remember if the bag was opened or closed prior to the search. Inside the bag was a CD case, and inside that case the police found a twenty-two caliber Beretta pistol. Elsewhere in the bag, the police discovered a "black CO-2 type BB gun."2
The prosecutor argued at the suppression hearing that a warrant to search the Plymouth was not necessary because the search was made incident to appellant's arrest. The prosecutor did not rely on any other exception to the warrant requirement.
During the hearing, the motions judge made it clear that he believed that, if the police could search the Plymouth at the place of arrest, the police could also search it at the police garage. For reasons discussed infra, we hold that he was wrong.
"[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment— subject only to a few specifically established and well delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). When a search is conducted without a warrant, the burden rests upon the state to prove that some exception to the warrant requirement applies. A case factually similar to the one at bar is, coincidentally, one where the petitioner has the same surname as the appellant. In Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), the petitioner and three other men sat parked in a motor vehicle in a business district under suspicious circumstances. Id. at 365, 84 S.Ct. 881. The men were arrested for vagrancy. Id. The petitioner and his cohorts were searched at the time of their arrest but the car was not. Id. Instead the car was driven by a police officer to the station house and from there it was towed to a garage where it was searched "[s]oon after the men had been booked at the station...." Id. In the car, the police found, among other things, two loaded revolvers, women's stockings (one with mouth and eye holes) and an "illegally manufactured license plate equipped to be snapped over another plate...." Id. at 365-66, 84 S.Ct. 881.
The issue in Preston was whether the search of the vehicle was lawful. Id. at 366-67, 84 S.Ct. 881. In Preston, as here, it was argued that the search was "incidental to a lawful arrest." Id. at 367, 84 S.Ct. 881. The Supreme Court held that it was not a lawful search and explained:
Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime. This right to search and seize without a search warrant extends to things under the accused's immediate control, and, to an extent depending on the circumstances of the case, to the place where he is arrested. The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime—things which might easily happen where the weapon or evidence is on the accused's person or under his immediate control. But these justifications are absent where a search is remote in time or place from the arrest. Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest. Here, we may assume, as the Government urges, that, either because the arrests were valid or because the police had probable cause to think the car stolen, the police had the right to search the car when they first came on the scene. But this does not decide the question of the reasonableness of a search at a later time and at another place. The search of the car was not undertaken until petitioner and his companions had been arrested and taken in custody to the police station and the car had been towed to the garage. At this point there was no danger that any of the men arrested could have used any weapons in the car or could have destroyed any evidence of a crime—assuming that there are articles which can be the "fruits" or "implements" of the crime of vagrancy. Nor, since the men were under arrest at the police station and the car was in police custody at a garage, was there any danger that the car would be moved out of the locality or jurisdiction. We think that the search was too remote in time or place to have been made as incidental to the arrest and conclude, therefore, that the search of the car without a warrant failed to meet the test of reasonableness under the Fourth Amendment, rendering the evidence obtained as a result of the search inadmissible.
Id. at 367-68, 84 S.Ct. 881 (emphasis added) (...
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