Ricks v. State

• Decision Date: 01 September 1990
• Docket Number: No. 67,67
• Citation: 322 Md. 183,586 A.2d 740
• Parties: Gilbert H. RICKS v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 183

322 Md. 183

586 A.2d 740

Gilbert H. RICKS v. STATE of Maryland.

No. 67, Sept. Term, 1990.

Court of Appeals of Maryland.

March 5, 1991.

Alan L. Cohen (Paul Michael Polansky, P.A., both on brief), Baltimore, for petitioner.

Thomas K. Clancy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., ELDRIDGE, RODOWSKY, McAULIFFE and CHASANOW, JJ., and CHARLES E. ORTH, Jr. and MARVIN H. SMITH, Judges of the Court of Appeals (retired), Specially Assigned.

MURPHY, Chief Judge.

We granted certiorari in this case to determine whether, in the circumstances, a warrantless police search of a piece of luggage, conducted essentially contemporaneously with a valid arrest of the owner of the luggage, violated Fourth Amendment precepts.

I.

Gilbert Ricks was charged in the Circuit Court for Wicomico County with a number of drug offenses. Prior to trial he moved to suppress a quantity of cocaine, marijuana and related paraphernalia which the police had seized following a search of his luggage. Ricks claimed, inter alia, that absent a search warrant, the search was illegal. The court (Simpson, J.) found that Ricks's arrest was lawful and that the evidence taken from his luggage was properly seized incident to his arrest.

At the trial, Ricks was convicted on all counts and sentenced to imprisonment for fifteen years. On appeal, he contended that even if the arrest was lawful, the search of his luggage was unlawful without a search warrant; and that in any event it exceeded the permissible scope of a search incident to an arrest as articulated in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The Court of Special Appeals held that the arrest was valid and because Ricks's bag was in the area of his reach at the time of the arrest, the warrantless search incident to his arrest was conducted in conformity with the principles enunciated in Chimel. Ricks v. State, 82 Md.App. 369, 571 A.2d 887 (1990).

II.

The evidence at the suppression hearing disclosed that police authorities received an anonymous tip by telephone that Ricks would arrive in Salisbury by Trailway bus from Baltimore on Friday, October 14, 1988, at approximately 6 p.m.; that he would be carrying a brownish to maroon fold-over soft luggage bag with a lock on it; and that Ricks would be carrying cocaine for sale in the Salisbury area. The anonymous caller gave an extremely detailed description of Ricks. Upon investigation, the police ascertained that Ricks had a prior CDS violation as well as a conviction for robbery.

Acting on this information, Ricks was accosted by Sergeant Bacon of the Maryland State Police as he emerged from the 6:05 P.M. Trailways bus in Salisbury. Ricks matched the description given by the tipster and was carrying the described fold-over luggage bag. After "patting down" Ricks's outer clothing for a weapon, and finding none, Bacon asked Ricks to accompany him to his police car and to place his bag on the trunk of Bacon's vehicle. Ricks complied. About a minute and a half later, Trooper Aaron arrived on the scene. At that time, Ricks was within arms reach of his bag, standing behind the vehicle with Sergeant Bacon. Aaron testified that there were then three other officers on the scene, one of whom asked Ricks for consent to search his bag. Ricks refused. According to Ricks's testimony:

"After that, we kept standing out there. I am standing--they are surrounding me. I am standing next to the back of Sergeant Bacon's car, and so, then Trooper Aaron was telling me that either I consent to searching the bags or they was going to call the dogs. Either way, we weren't going to leave until we went into the bags."

Aaron testified that approximately fifteen minutes later the police narcotics canine, Dusty, arrived accompanied by Deputy Wilkinson. One of the officers took Ricks's bag off of the trunk of the car and placed it on the sidewalk. The dog scratched the bag, an indication that it contained narcotics. ¹ At that point, Ricks was again asked to open the bag, and whether there were any narcotics in the bag. Ricks said that there were no narcotics in the bag and he again declined to open it. The officers then advised Ricks that the dog's actions indicated that there were narcotics in the bag "and that there was probable cause to open the bag and look inside at which point he said, you have to do what you have to do." The bag was opened and searched; it contained a quantity of suspected cocaine, marijuana and distribution paraphernalia.

III.

Ricks does not contest the intermediate appellate court's determination, which affirmed the trial court's denial of the motion to suppress, that his arrest was supported by the requisite probable cause. Indeed, at oral argument before us, Ricks conceded that he was lawfully arrested, at least at the point when the dog scratched his bag, indicating that it contained narcotics. Nevertheless, Ricks argues that because he had a reasonable expectation of privacy in his luggage, the police had no right to search it without a search warrant, absent exigent circumstances. There were no such circumstances, he contends, because the luggage was securely in police possession and beyond his control. In these circumstances, he maintains that the Fourth Amendment requires that a search warrant be obtained, there being no danger that he could obtain a weapon or destroy incriminating evidence which would justify a warrantless search incident to the arrest. Ricks relies primarily upon United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) and Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979).

The Fourth Amendment protects individuals from unreasonable searches and seizures. A warrantless search or seizure is per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions. Gamble v. State, 318 Md. 120, 123, 567 A.2d 95 (1989); Stackhouse v. State, 298 Md. 203, 209, 468 A.2d 333 (1983); Howell v. State, 271 Md. 378, 379, 318 A.2d 189 (1974). A search incident to a valid arrest is one of the limited exceptions to the warrant requirement. Chimel v. California, supra; Colvin v. State, 299 Md. 88, 98, 472 A.2d 953, cert. denied, 469 U.S. 873, 105 S.Ct. 226, 83 L.Ed.2d 155 (1984). Chimel emphasized "that '[t]he scope of [a] search must be' strictly tied to and justified by 'circumstances which rendered its initiation permissible.' " Id., 395 U.S. at 762, 89 S.Ct. at 2039 quoting Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). The Court stated that, incident to an arrest, police may search the person of the arrestee and any area within his immediate control to protect themselves from danger and to prevent the destruction or concealment of evidence; specifically, it said:

"When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area 'within his immediate control'--construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence."

Id., 395 U.S. at 762-63, 89 S.Ct. at 2040. See generally C. Torcia, 1 Wharton's Criminal Procedure, § 171 (13th ed. 1989); W. LaFave, 2 Search and Seizure, § 5.5 (2d ed.1987); J. Cook, 1 Constitutional Rights of the Accused, § 3.26 (1985); R. Gilbert and C. Moylan, Jr., Maryland Criminal Law: Practice and Procedure, § 29.3-29.4 (1983).

To justify a warrantless seizure of evidence under Chimel, the State must demonstrate on the record that the evidence "was found either on the person of the arrestee or in a place so perilously close to him at the time of the arrest that had the discovered item been a weapon it might reasonably be employed by the person in custody to the detriment of the officer or had it been concealable or destructible evidence it would be readily susceptible to being demolished by the arrestee." Howell, supra, 271 Md. at 384-85, 318 A.2d 189; Bouldin v. State, 276 Md. 511, 519, 350 A.2d 130 (1976); Anderson v. State, 78 Md.App. 471, 484, 553 A.2d 1296 (1989).

We applied these principles in Foster v. State, 297 Md. 191, 217-20, 464 A.2d 986, cert. denied, 464 U.S. 1073, 104 S.Ct. 985, 79 L.Ed.2d 221 (1983). In that case the appellant was arrested in a motel room. The arresting officer patted her down and handcuffed her hands behind her back. He then searched the area immediately around her, including a partially open night stand drawer a few feet away. Money found in the drawer was seized as evidence. We held that the search of the drawer incident to the arrest was reasonable under Chimel, even though the arrestee was handcuffed at the time of the search. We recognized that the night stand remained in an area where the arrestee might nevertheless have gained access, particularly if she was able to break free from the handcuffs. The search of the drawer was, therefore, necessary to protect the officer from potential harm.

We again considered the scope of the search incident to an arrest in Lee v. State, 311 Md. 642, 537 A.2d 235 (1988). There, a police detective received a phone call from an anonymous...