State v. Bell

• Decision Date: 01 September 1993
• Docket Number: No. 79,79
• Citation: 334 Md. 178,638 A.2d 107
• Parties: STATE of Maryland v. Kevin BELL a/k/a Kevin Rich. ,
• Court: Maryland Court of Appeals

Page 178

334 Md. 178

638 A.2d 107

STATE of Maryland v. Kevin BELL a/k/a Kevin Rich.

No. 79, Sept. Term, 1993.

Court of Appeals of Maryland.

March 15, 1994.

Tarra DeShields-Minnis, Asst. Atty. Gen., (J. Joseph Curran, Jr., Atty. Gen., both on brief) Baltimore, for petitioner.

Sherrie B. Glasser, Asst. Public Defender, (Stephen E. Harris, Public Defender, both on brief) Baltimore, for respondent.

Before MURPHY, C.J., and RODOWSKY, CHASANOW, KARWACKI, ROBERT M. BELL, RAKER and CHARLES E. ORTH, Jr., (retired, specially assigned), JJ.

KARWACKI, Judge.

Kevin Bell, a/k/a Kevin Rich ¹, was convicted by a jury in the Circuit Court for Baltimore City of one count of possession with intent to distribute cocaine, and one count of simple possession of cocaine. Prior to his trial, Bell moved to suppress 119 vials of cocaine, arguing that the cocaine was the fruit of an unlawful search of an automobile. The State countered that the automobile was lawfully searched pursuant to the inventory exception to the warrant requirement of the Fourth Amendment to the United States Constitution and Article 26 of the Maryland Declaration of Rights. ² Bell's motion was denied, and the cocaine was admitted as evidence. On appeal, the Court of Special Appeals reversed his conviction holding that the search was not a valid inventory and declining to address an argument, advanced for the first time on appeal, that the search was lawful under the automobile exception to the warrant requirement announced in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Bell v. State, 96 Md.App. 46, 55, 623 A.2d 690, 694 (1993). We granted the State's petition for certiorari to review whether the Court of Special Appeals was required to consider the State's argument based upon the Carroll doctrine when the argument was not raised in the trial court. Under the circumstances of the instant case, we shall affirm the Court of Special Appeals.

I

The facts of the case are set forth in the opinion of the Court of Special Appeals:

"At approximately 5:30 P.M. on May 15, 1991, Officers Mark Daugherty, William Brown, and Attlay Williams were driving an unmarked car in the vicinity of Woodland and Homer Avenues in Baltimore City. The officers described the neighborhood as a high crime area generally and an area known for heavy narcotics activity specifically. The officers observed a group of four or five young men, the appellant among them, 'scatter' at the approach of the three strangers. The appellant walked away from the rest of the group and approached the passenger door of a 'red Chevy Geo.' According to Officer Daugherty, the appellant made 'a hand movement as [if he were] placing something in the vehicle.' He then shut the car door and dropped a plastic bag next to the car.

The officers did not immediately move in on the appellant or any of the other members of the group. They continued to patrol the general area and, approximately ten minutes later, returned to the intersection of Woodland and Homer Avenues. Upon their return, the appellant was standing next to the open passenger door of the red Chevy Geo. At the approach of the 'strangers,' he closed the door and dropped what appeared to be 'a vial, a white object' into the three-inch window opening. At that point, the three officers got out of their automobile and placed the appellant under arrest. A search of his person revealed a 'black diamond watch' and a beeper.

The police testimony itself revealed that their focus on the automobile was investigative in nature from the very outset. Immediately after arresting the appellant, the officers asked him to consent to the search of the car. According to their testimony, he refused and told them that they would have to obtain a search warrant if they desired to look into the car. Even in the face of that denial of consent, the police interest in the car did not abate.

Officer Brown walked over to the car and observed a vial of white powder lying in open view on the floor of the front passenger seat. A supervising officer, Sergeant Cappucino, arrived on the scene and conferred with the officers. Ostensibly under the authority of the Carroll Doctrine, the police warrantlessly opened the door of the automobile and retrieved the vial of white powder that had been spotted on the floor. That apparently ended the Carroll Doctrine probe into the automobile.

Officer Brown continued his testimonial narrative: 'Once we did that, we called for a wagon and began an inventory of the vehicle since we were going to tow it.' Between the passenger seat and the driver's seat, Officer Brown found a 'Fila' ³ bag. Inside the Fila bag were several baggies. The first contained five bundles containing ten vials each. A second contained 'bundles of ten each wrapped in a rubber band.' A third baggie contained 'three bundles of ten each and one bundle with nine vials.' Officer Brown testified that the substance in the various containers had been 'packaged for street distribution.' Chemical analysis revealed the substance to be cocaine."

Bell v. State, 96 Md.App. at 51-53, 623 A.2d at 692-93.

The transcript of the suppression hearing reveals that the State crafted its argument in terms of two separate, distinct searches. The propriety of the first search, that which consisted of opening the door of the automobile and retrieving the vial of cocaine spotted on the floorboard, is not at issue. The Court of Special Appeals had no difficulty in upholding the seizure of the single vial of cocaine, finding that the automobile exception to the warrant requirement (i.e., the Carroll doctrine) legitimated that search. Id. 96 Md.App. at 54, 623 A.2d at 693. It is the second search, which encompassed the entire car and revealed the Fila bag and its contents, that is the subject of contention.

At the suppression hearing, the State argued that the second search was an inventory search, requiring neither a warrant nor probable cause. See South Dakota v. Opperman, 428 U.S. 364, 370-74, 96 S.Ct. 3092, 3097-99, 49 L.Ed.2d 1000, 1005-08 (1976); Duncan and Smith v. State, 281 Md. 247, 256-59, 378 A.2d 1108, 1114-16 (1977). The circuit court agreed that, although "the inventory, as related by the officers, leaves something to be desired, nevertheless, the inventory was enough to get them into the Fila bag." In its brief before the Court of Special Appeals, the State modified its initial argument, adding an alternative argument in support of the legality of the search. There, the State contended that the warrantless search of the entire car was permissible not only under the inventory exception, but also under the Carroll doctrine's automobile exigency exception to the warrant requirement.

When it reviewed the facts, the intermediate appellate court disagreed with the circuit court's conclusion as to the validity of the inventory search, holding that the second search of the car was not a bona fide inventory search, but was instead " 'a case more of investigative opportunism than of genuine solicitude for personal property.' " Bell v. State, 96 Md.App. at 59, 623 A.2d at 696 (quoting Dixon v. State, 23 Md.App. 19, 38, 327 A.2d 516, 527 (1974)). The Court of Special Appeals also declined to extend the Carroll doctrine beyond the first search, finding that once the single vial had been seized, the first search was complete, and the Carroll doctrine permitted no further "gratuitous rummaging about." Bell, 96 Md.App at 54, 623 A.2d at 694. Judge Moylan, speaking for the court, then stated:

"Although an argument might someday be made for extending a search such as this based upon some almost Newtonian proposition that the discovery of some contraband suggests the likely presence of more contraband yet to be discovered, it is enough to note that no such argument was made by the State in this case, either at the suppression hearing or before us."

Id. at 55, 623 A.2d at 694. Before this Court, the State makes this very argument, stating that "[w]here there is smoke, there is bound to be fire." It does not challenge the intermediate appellate court's rejection of the inventory search justification, but instead it treats the search of the car and the Fila bag as a continuation of the initial search and argues that it is clearly permitted under the Carroll doctrine. In this regard, the State argues that the Court of Special Appeals erred in failing to address that argument as it pertains to the second search. Because we find that the intermediate court did not err, either in limiting the scope of the initial search for the single vial or in declining to consider the State's Carroll doctrine argument as it pertains to the search and seizure of the Fila bag and its contents, we need not address the validity of the second search.

II

The State argues that by limiting the scope of the permissible Carroll doctrine search to the single vial only, the Court of Special Appeals misinterpreted the scope of the Carroll doctrine. Had the State initially argued in the trial court that the police had probable cause for more than one vial, or that the officers' actions constituted one extended search for an undetermined quantity of narcotics, this argument would perhaps stand on stronger ground. It was the State, however, which initially framed its case in terms of two separate searches and argued probable cause for the first search only. The trial court and the intermediate appellate court merely accepted the State's presentation of the case, and we will do the same.

Given the fact that the two searches were distinct, the Court of Special Appeals was entirely correct in determining that the first search was complete upon the seizure of the single vial. The intermediate appellate court reasoned:

"What followed that limited seizure [of the single vial] was beyond the permitted scope of this particular 'automobile exception' entry. The permitted scope of a Carroll doctrine search, of...