State v. Wilson, 26

• Decision Date: 24 January 1977
• Docket Number: No. 26,26
• Citation: 279 Md. 189,367 A.2d 1223
• Parties: STATE of Maryland v. Rayfield Zeke WILSON.
• Court: Maryland Court of Appeals

Page 189

279 Md. 189

367 A.2d 1223

STATE of Maryland v. Rayfield Zeke WILSON.

No. 26.

Court of Appeals of Maryland.

Jan. 24, 1977.

Bernard A. Raum, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellant.

George E. Burns, Jr., Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE and ELDRIDGE, JJ.

LEVINE, Judge.

We granted certiorari in this case to consider whether the finding and taking of serial numbers from certain equipment during a search for narcotics, conducted pursuant to a valid warrant, was an unconstitutional search and seizure. On appeal from appellee's conviction for receiving stolen goods in the Circuit Court for Prince George's County, the Court of Special Appeals, in Wilson v. State, 30 Md.App. 242, 252, 351 A.2d 437 (1976), held that a police officer violated appellee's rights under the Fourth Amendment by engaging in an illegal search and in unlawfully seizing the serial numbers, and that the state had failed to meet its burden of showing that consent to the subsequent seizure of the equipment was freely and voluntarily given. Since we agree with the Court of Special Appeals, we shall affirm.

The events leading to the arrest and prosecution of appellee began on the evening of June 18, 1974, at the residence in Carmody Hills which he shared with several people. A Prince George's County police officer, acting as a 'back-up,' accompanied federal agents to this residence, where the agents were to execute a valid search warrant for narcotics and narcotics paraphernalia. While the agents searched downstairs, the county officer searched appellee's upstairs bedroom. He observed that 'sitting on top of the drawer, the dressers, on the floors' were '(s)omewhere around twenty, twenty-five' items, consisting of 'various t. v. sets, stereo equipment, speakers, one or two clock radios, camera and various items in the house.' The officer 'looked over' these items and 'jotted down the serial numbers of all of them.' Then, during 'the last ten minutes (the officer) was in the bedroom,' the federal agents also searched the room. To conduct their narcotics search, the agents 'would . . . have moved some of these items anyway.'

After a thorough search, the federal agents departed empty-handed, finding neither narcotics nor narcotics paraphernalia, while the police officer left with his list of serial numbers. Later that night, the officer checked the serial numbers against those stored in a national computer system which lists serial numbers of stolen equipment. One number matched, indicating that appellee possessed a Sony cassette tape recorder which had been stolen some 4 1/2 months earlier from an apartment in nearby Lanham. The officer then referred the matter to another division.

On the following day, one Prince George's County police sergeant and two detectives, although lacking a search warrant, proceeded to appellee's residence. One of appellee's housemates answered the door and invited the policemen inside. On seeing appellee, one detective 'approached the Defendant, advised him of his (Miranda) rights and explained that the stolen property was observed and verified in his home the night before by the uniformed officer.' Asked, then, whether he understood these rights, appellee 'acknowledged that he did.' Specifying the serial number of the cassette recorder, the police then requested that appellee 'relinquish the property.' Appellee replied that '(i)t was in his room and he led (the officer) up there.' On reaching appellee's room, the detective located the cassette recorder, verified that its serial number matched the one revealed by the computer, seized it, and arrested appellee. The detective observed, in addition to the recorder, '(s)everal stereo items (and) many, many shoes.' He further specified two television sets and 'at least four stereo units,' which 'could be receivers, amplifiers, cassettes, tape players or a combination, but there were four separate pieces which could have been off any of the described items.' Their assignment completed, the police transported appellee and the recorder to the police station.

Appellee was charged with burglary, housebreaking, grand larceny, and receiving stolen goods. Confronted during the trial by appellee's objection to the introduction of the recorder into evidence, the court (Meloy, J.) ruled that appellee had consented to the seizure of the cassette recorder, and thus found it unnecessary to rule on the legality of the police conduct in copying the serial numbers. After the State abandoned the burglary and one of the receiving stolen goods counts, the jury convicted appellee of receiving stolen goods of the value of $100 or more, and the court sentenced him to a term of six years.

I.

We begin by observing that both the State and appellee, correctly in our view, treat the taking of the serial numbers as a seizure within the meaning of the Fourth Amendment. See United States v. Clark, 531 F.2d 928, 931-32 (8th Cir. 1976); United States v. Gray, 484 F.2d 352, 356 (6th Cir. 1973), cert. denied, 414 U.S. 1158, 94 S.Ct. 916, 39 L.Ed.2d 110 (1974); United States v. Sakolow, 450 F.2d 324 (5th Cir. 1971) (per curiam); State v. Murray, 84 Wash.2d 527, 527 P.2d 1303, 1308 (1974), cert. denied, 421 U.S. 1004, 95 S.Ct. 2407, 44 L.Ed.2d 673 (1975). Appellee is entitled to Fourth Amendment protection because he did not 'knowingly (expose) to the public' either the numbers or the equipment they identified. Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Appellee's expectation of privacy, moreover, was reasonable. Id. at 361, 88 S.Ct. 507 (Harlan, J., concurring).

The issue in controversy here is whether the search for the serial numbers and their seizure were lawful. To prevent the issuance of general warrants, the Fourth Amendment requires that a warrant 'particularly (describe) the place to be searched, and the persons or things to be seized.' The warrant which was issued here mentioned only narcotics and narcotics paraphernalia. Manifestly, then, the seizure of the serial numbers cannot be justified under the terms of the warrant.

Moreover, 'searches 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, supra, 389 U.S. at 357, 88 S.Ct. at 514 (footnotes omitted). To sustain the seizure here, therefore, the State must shoulder the heavy burden of showing that one of the exceptions applies. Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970).

II

The State contends, first, that the seizure was valid under the 'plain view' exception enunciated in the plurality opinion in Coolidge v. New Hampshire, supra, 403 U.S. at 464-73, 91 S.Ct. 2022. This doctrine serves to supplement a previously justified intrusion, such as a search warrant for other property, and permits a warrantless seizure. Id. at 466, 91 S.Ct. 2022. The exception, on the other hand, may not be used to expand a justified, but limited, intrusion into a general exploratory search of a person's belongings until something incriminating at last emerges. Id. at 466-67, 91 S.Ct. 2022. To confine the exception within these boundaries, the Court prohibited the use of any evidence seized outside the warrant unless (1) the police have a prior justification for the intrusion; (2) they find the evidence in plain view; (3) they find it inadvertently; and (4) it is 'immediately apparent to the police that they have evidence before them,'id. at 466-71, 91 S.Ct. at 2038. Accord, United States v. Johnson, 541 F.2d 1311, 1316 (8th Cir. 1976); United States v. Clark, supra, 531 F.2d at 932; United States v. Wilson, 524 F.2d 595, 598 (8th Cir. 1975), cert. denied, 424 U.S. 945, 96 S.Ct. 1415, 47 L.Ed.2d 351 (1976); State v. Keefe,13 Wash.App. 829, 537 P.2d 795, 797 (1975).

Appellee contends that neither the third nor fourth requirement imposed by Coolidge for application of the 'plain view' exception has been met here. In our view, it is unnecessary to consider the 'inadvertence' requirement, since, in any event, it was not 'immediately apparent to the police that they (had) evidence before them.' This element, in essence, amounts to a requirement that police have probable cause to believe the evidence is incriminating before they seize it. As the court said in United States v. Gray, supra, 484 F.2d at 356, '(I)t must be 'immediately apparent' to the police that the object is in fact incriminating or the seizure of the object would be without probable cause and would turn the search into a general or exploratory one.' Accord, United States v. Clark, supra, 531 F.2d at 932; United States v. Wilson, supra, 524 F.2d at 598-99; United States v. Truitt, 521 F.2d 1174, 1176 (6th Cir. 1975); see United States v. Golay, 502 F.2d 182, 184-86 (8th Cir. 1974). Stated another way, to be subject to seizure, the object must be one for which the police could have obtained a warrant because they had probable cause. Coolidge v. New Hampshire, supra, 403 U.S. at 467-68, 91 S.Ct. 2022.

In the context of another exception to the warrant requirement, the 'hot pursuit' doctrine, the Supreme Court has indicated what information a police officer must possess before he can be said to have probable cause to seize evidence:

'. . . There must, of course, be a nexus-automatically provided in the case of fruits, instrumentalities or contraband-between the item to be seized and criminal behavior. Thus in the case of 'mere evidence,' probable cause must be examined in terms of cause to believe that the evidence...