State v. Fernon

• Decision Date: 28 June 2000
• Docket Number: No. 2852,2852
• Citation: 133 Md. App. 41,754 A.2d 463
• Parties: STATE of Maryland v. Benjamin T. FERNON.
• Court: Court of Special Appeals of Maryland

754 A.2d 463

133 Md. App. 41

STATE of Maryland v. Benjamin T. FERNON.

No. 2852, Sept. Term, 1999.

Court of Special Appeals of Maryland.

June 28, 2000.

Kathryn Grill Graeff, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Scott G. Patterson, State's Atty. for Talbot County, Easton, on the brief), for appellant.

Stephanie A. Shipley (Campen & Walsworth, P.A., on the brief), Easton, for appellee.

Argued before HOLLANDER, EYLER and ROBERT L. KARWACKI (Retired, specially assigned), JJ.

HOLLANDER, Judge.

In this expedited appeal filed by the State pursuant to Maryland Code (1998 Repl.Vol., 1999 Cum.Supp.), 12-302(c)(3) of the Courts and Judicial Proceedings Article ("C.J."), the State challenges an Order of the Circuit Court for Talbot County suppressing marijuana and drug paraphernalia recovered from a locked console in the passenger compartment of a motor vehicle belonging to Benjamin Fernon, appellee. The vehicle search was conducted shortly after Fernon was arrested on a charge of driving while intoxicated ("DWI"), and while he was handcuffed and seated in the police car with the seat belt fastened. As a result of the search, Fernon was also charged with possession with intent to distribute marijuana and related drug offenses.

On January 11, 2000, the State timely noted its appeal from the suppression order.¹ Thereafter, on January 28, 2000, Fernon pleaded guilty to the offense of driving under the influence of alcohol, after expressly waiving any potential double jeopardy claims regarding the drug charges that were the subject of his motion to suppress. The circuit court then granted Fernon probation before judgment and placed him on supervised probation for one year.

In its appeal, the State poses one question for our consideration:

Did the lower court err in granting Fernon's motion to suppress on the ground that the search of Fernon's car was not a proper search incident to arrest?

To answer that question, we must determine whether the police conducted a lawful vehicle search incident to Fernon's custodial arrest for DWI, given that, at the time of the search, Fernon was handcuffed and placed in a police car at the scene. For the reasons stated below, we conclude that the search was conducted incident to appellee's arrest and that the circuit court erred in suppressing the evidence recovered from appellee's vehicle. Accordingly, we shall reverse and remand.

FACTUAL SUMMARY

Our review of the trial court's decision with respect to a suppression motion "ordinarily is limited to information contained in the record of the suppression hearing." Cartnail v. State, 359 Md. 272, 282, 753 A.2d 519 (2000); see Ferris v. State, 355 Md. 356, 368, 735 A.2d 491 (1999); Trusty v. State, 308 Md. 658, 670, 521 A.2d 749 (1987); Hardy v. State, 121 Md.App. 345, 353, 709 A.2d 168,cert. denied, 351 Md. 5, 715 A.2d 964 (1998). In our review, we give due regard to the motion judge's opportunity to assess the credibility of the witnesses, McMillian v. State, 325 Md. 272, 281-82, 600 A.2d 430 (1992), and we defer to the factual findings of the suppression judge, unless clearly erroneous. See Ferris, 355 Md. at 368,735 A.2d 491. Moreover, we review the evidence in the light most favorable to the prevailing party. Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239 (1990). Nevertheless, we must make our own independent constitutional appraisal as to whether the search was lawful. Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Cartnail, 359 Md. at 282-83,753 A.2d 519; Jones v. State, 111 Md.App. 456, 465, 681 A.2d 1190,cert. denied, 344 Md. 117, 685 A.2d 451 (1996). This is accomplished by reviewing the law and applying it to the first-level facts found by the suppression judge. In re Tariq A-R-Y, 347 Md. 484, 488-89, 701 A.2d 691 (1997); Riddick, 319 Md. at 183,571 A.2d 1239; Howard v. State, 112 Md. App. 148, 156, 684 A.2d 491 (1996),cert. denied, 344 Md. 718, 690 A.2d 524 (1997).

At the suppression hearing held on December 16, 1999, Maryland State Trooper C. Lewis was the only witness. Although the material facts are undisputed on appeal, the parties hotly contest the application of the law to the facts.

Appellee was traveling westbound on U.S. Route 50 during the early morning of July 10, 1999. At approximately 1:38 a.m., Trooper Lewis effectuated a traffic stop of a 1990 Jeep Wrangler because it was exceeding the posted speed limit. At the time, Lewis was accompanied by Trooper Anthony Balchun, who was an officer in training. Fernon was identified as the driver of the Jeep, and he was the sole occupant of the vehicle. Both officers approached the driver's window of the Jeep. Lewis testified that, as he approached the driver's window of the Jeep, he "detected a strong odor of an alcoholic beverage about the breath and person of Mr. Fernon." Thereafter, Balchun asked appellee to exit his vehicle in order to perform a field sobriety test, which was conducted on the shoulder of the road in the area between the Jeep and the police vehicle.²

At approximately 1:49 a.m., after the completion of the field sobriety test, appellee was placed "under arrest for drinking and driving." He was then handcuffed behind his back and placed in the front passenger seat of the police vehicle with the seat belt fastened. At that point, Lewis conducted "a quick cursory search" of the police vehicle, which took "a minute or two," in order "to make sure no personal effects were laying about."

Trooper Lewis and Trooper Balchun then conducted a search of appellee's vehicle. In response to questioning, Trooper Lewis acknowledged that the vehicle search was "solely based on a search incident to [appellee's] custodial arrest based on the DWI."

Using appellee's keys, Trooper Balchun unlocked the center console located between the driver and passenger seats in the Jeep.³ Lewis described the console as about six inches wide, ten to twelve inches long, and six or seven inches deep. From inside the console, Lewis recovered a large plastic bag containing six smaller, individually wrapped clear plastic baggies, each containing suspected marijuana. A cellophane wrapper, similar to the kind found on a cigarette pack, was also found in the console, and it contained suspected marijuana. In addition, a copper smoking pipe was located in the console. According to Lewis, the items were recovered from the Jeep within minutes of appellee's arrest at 1:49 a.m. Lewis also testified that, at 1:58 a.m., he notified the Easton Barracks that "CDS" had been recovered from the Jeep. Therefore, the search was completed no later than nine minutes after appellee's arrest.

In moving to suppress the evidence recovered from the Jeep, appellee did not contest the legality of his arrest or complain because the items were seized from a locked console in the vehicle. Rather, defense counsel maintained that the evidence was obtained in violation of appellee's rights under the Fourth Amendment, because the police conducted an unlawful warrantless search. Relying on the principles of New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), and other cases, the defense attorney asserted that the police did not perform a lawful search incident to arrest, because Fernon was handcuffed and placed in the patrol car at the time of the search. Thus, she argued that when the search was made, the Jeep no longer constituted the immediate surrounding area to which Fernon had access; he could not have obtained a weapon from the Jeep or destroyed evidence in it. Consequently, defense counsel maintained that the police exceeded the permissible scope of a search incident to arrest. The State countered that the police were entitled under Belton and other cases to conduct a contemporaneous search of a locked container in the passenger compartment of the Jeep, incidental to Fernon's lawful arrest, notwithstanding that he was handcuffed and placed in the police car at the time of the search.

The trial court granted appellee's suppression motion in a written Order filed on December 28, 1999. The court reasoned:

The State has argued that the search of the [appellee's] vehicle was a valid search "incident to a lawful arrest" even when the [appellee] was handcuffed in the police vehicle. See New York v. Belton, 453 U.S. 454 [101 S.Ct. 2860, 69 L.Ed.2d 768] (1981); see also State v. Ott, 85 Md.App. 632 (1991), rev'd on other grounds, 325 Md. 206 (1992); [United States] v. Mitchell, 82 F.3d 146 (7 th Cir.1996); [United States] v. Willis, 37 F.3d 313 (7 th Cir.1994); and [United States] v. Mans, 999 F.2d 966 (6 th Cir. 1993).

The State has, however, failed to convince the Court that the search was valid. Initially, the Court recognizes that the rationale for a search incident to a lawful arrest was to prevent an arrestee from "gain[ing] possession of a weapon or destructible evidence." Chimel v. California, 395 U.S. 752, 763 [89 S.Ct. 2034, 23 L.Ed.2d 685] (1969). Further, the Court notes that the State must overcome the presumption that all warrantless searches "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).

While a search "incident to a lawful arrest" is one of those exceptions, the facts in this case do not support the exception as laid out in Belton. The Court held in Belton that a "lawful custodial arrest creates a situation justifying the contemporaneous warrantless search of the arrestee and of the immediately surrounding area." Id. at 463 (emphasis added). In Belton, however, after the occupants were arrested, a search of the vehicle was conducted while the arrestees stood immediately outside of the vehicle. Further, the officer previously smelled burning marijuana and viewed an envelope on the driver's side floor area containing suspected marijuana.

The...