St. Clair v. State

• Decision Date: 11 August 1967
• Docket Number: No. 41,41
• Citation: 232 A.2d 565,1 Md.App. 605
• Parties: Buford Linwood ST. CLAIR v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 605

1 Md.App. 605

232 A.2d 565

Buford Linwood ST. CLAIR v. STATE of Maryland.

No. 41.

Court of Special Appeals of Maryland.

Aug. 11, 1967.

Glenn O. Hall, Jr., Kensington, for appellant.

Edward F. Borgerding, Asst. Atty. Gen., Baltimore, Francis B. Burch, Atty. Gen., Baltimore, Arthur A. Marshall, Jr., State's Atty. for Prince George's County, and Edward P. Camus, Asst. State's Atty. for Prince George's County, Upper Marlboro, on the brief, for appellee.

Before ANDERSON, MORTON and ORTH, JJ., and WALTER M. JENIFER, and JAMES MACGILL, Special Judges.

JAMES MACGILL, Special Judge.

A jury in the Circuit Court for Prince George's County found the appellant guilty of breaking a dwelling house in the daytime with intent to commit a felony therein and grand larceny. From the judgment of the court he has appealed, contending that the articles allegedly stolen from the dwelling should not have been received in evidence against him because they had been secured as the result of an unlawful search and seizure. He also complains (a) that the State failed to establish a proper chain of custody of the stolen goods, (b) that the trial judge erroneously charged the jury with reference to the provisions of Section 32 of Article 27 of the Code, rather than with reference to the provisions of Section 30(b) of the Article and (c) that no witness identified him in court and that there was no evidence produced to establish that the breaking occurred in the daytime.

On August 3, 1965, James A. Braswell returned from a trip to South Carolina and found that his home near Upper Marlboro had been broken into during his absence, and that certain articles of an aggregate value in excess of $100.00 were missing. He notified the Prince George's County police and furnished a description of the missing articles. On August 6 or 7, the police put out a teletype message 'to the general area' advising of the stolen goods.

At 11:15 a.m. on August 7, 1965, Trooper Rhodenizer of the Virginia State Police observed the appellant asleep in his automobile, which bore Alabama license plates, on State Route 800, near the town of Salem in Roanoke County, Virginia. The trooper also observed two television sets in open view on the floor of the vehicle. He roused the appellant and, in response to inquiries made by the trooper, appellant produced his California driver's license, bearing an Orange, California, address, and his registration papers for the vehicle, showing it to have been titled in Alabama to appellant. Appellant told the officer that he owned the television sets; that he had come from California via Alabama to look for work in Virginia and Maryland; and that as he had arrived in the area late at night, and did not want to awaken relatives with whom he intended to stay, and who lived but a short distance from where he was parked, he decided to spend the night sleeping in his car. The trooper knew of appellant's relatives and also knew that they lived in the immediate area. Satisfied with appellant's explanation, the trooper began to drive away, but as he did so, he checked the name of the appellant by police radio with his dispatcher. He was immediately informed of the existence of a teletype message to the effect that appellant was wanted by California authorities 'for violation of parole and burglary.' The trooper halted the appellant, who was then driving off, and informed him that there was a teletype message for his arrest, and that he would be taken before a justice of the peace in Salem. Appellant then requested permission to remove an article of clothing from the trunk of his car. When the trunk lid was raised, the trooper observed a number of articles in the trunk, including a vacuum cleaner, a floor fan, a record player, a slide projector and a sewing machine. The trooper, at that time, believed that these articles were owned by appellant, although as it was later learned, they were part of the goods stolen from Braswell.

The trooper, after searching appellant's person, took him in his police car to a justice of the peace in Salem, which was approximately twelve miles from the scene of the arrest. The trooper there obtained a fugitive warrant on the strength of the teletype message-the message containing information that California authorities were seeking appellant for 'violation of probation, burglary'; that California authorities would extradite; that appellant was last seen on July 30, 1965 in Washington, D. C. driving a car with Alabama license plates; that he had there attempted to use a credit card stolen in a burglary in Texas; and that Texas authorities also wanted appellant.

Upon his failure to post the requisite bond to secure his release, appellant was incarcerated in the Salem jail, immediately after which the trooper returned to the appellant's car, bringing his Sergeant with him so that the latter could drive it into Salem. The car was thereafter returned to Salem and parked near the jail. Rhodenizer, in his testimony at the trial, stated that 'because we were responsible for them,' the contents of appellant's vehicle, including those in the trunk, were promptly removed by the State Police, inventoried by the serial number on each of the articles And placed in the custody of the Sheriff.

The articles remained in the Sheriff's custody for about four days when, due to a shortage of space in the Sheriff's office, the State Police were required to move the goods back into appellant's car, which was still parked adjacent to the jail. Appellant, having signed a waiver of extradition, was returned to California on the fifth day following his arrest. On August 19-twelve days after appellant's arrest-a list of the articles taken from his car was 'run on the teletype as police information, found,' which, according to Trooper Rhodenizer's testimony, meant that they were listed as having been found in appellant's possession 'just for general police information over the teletype network.' On August 20, Prince George's County police, responding to the Salem teletype, advised that the goods had been stolen. Trooper Rhodenizer then took the articles from the trunk of appellant's car and placed them in the storage room in the State Police head-quarters in Salem.

Rhodenizer testified that after inventorying the contents of appellant's car, appellant told him that he would like his brother-in-law to have his vehicle and to this end, the trooper 'assisted him in drawing up papers giving his brother-in-law the power of attorney to get a Virginia title.' Testifying in response to the question-'Did he (appellant) say anything about what he would like you to do with the goods in the car,' the trooper said:

'No, not specifically. He mentioned his sister and he indicated that he would like her to get what he had.'

Elaborating on his testimony that he felt 'responsible' for the contents of appellant's car, Rhodenizer testified that in the circumstances under which appellant was arrested, the 'practice' was 'to inventory each item that we find in the vehicle and leave them for safekeeping.'

Appellant was not asked nor did he consent to the inventory and removal of the articles from his car. No search warrant was obtained to search the vehicle because, as Trooper Rhodenizer testified: 'He had no reason to suspect that any items in the car were stolen.'

Testifying in his own behalf at the trial, the appellant stated that immediately after his arrest he asked permission to drive his car to the home of his relatives, approximately one quarter of a mile from the point of the arrest; that the trooper refused to grant such permission, instead telling him to 'leave it there and lock it up'; that he told the trooper 'one door won't lock, and I've got some stuff in it I don't want nobody to take'; and that he thereafter gave the keys of the car to the trooper and told him to give the keys to his brother-in-law so that his brother-in-law could drive the car to his house. ¹

The stolen articles taken from appellant's car following his arrest were received in evidence at the trial over his objection. Appellant contends on this appeal, as he did below, that the search of his vehicle was not incident to his arrest for parole violation and, in any event, was too remote in time and place from the arrest to be classified as a search incident to an arrest. He contends that the search was but an exploration for incriminating evidence. The State, on the other hand, contends that the search was lawful as incident to a valid arrest or, alternatively, that there was no search or seizure, but rather only a taking of the articles into 'protective custody'; and when it was subsequently learned that the articles were stolen, then the seizure thereof was entirely legal.

The initial question before us is whether, in the circumstances of this case, the inventory and removal by police of the contents of appellant's car constituted an unreasonable search and seizure in violation of the Fourth Amendment to the Federal Constitution. Manifestly, if such police action constituted a 'search' in the constitutional sense, ² it can survive constitutional inhibition only upon a showing that the surrounding facts bring it within one of the exceptions to the rule that a search must rest upon a search warrant. See Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). One such exception-that of consent-is clearly not applicable, since at no time did appellant consent to the entry into and removal of the contents of his vehicle. Another exception to the rule-that which authorizes a search incident to a valid arrest-is likewise inapplicable under the facts of this case. The police expressly disavowed making any 'search' of the vehicle, either incident to the arrest or otherwise. They sought to justify their action on the ground that under the circumstances t...