Waugh v. State

• Decision Date: 16 May 1975
• Docket Number: No. 112,112
• Parties: William B. WAUGH v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 22

275 Md. 22

338 A.2d 268

William B. WAUGH v. STATE of Maryland.

No. 112.

Court of Appeals of Maryland.

May 16, 1975.

Charles Duvall Smith, Upper Marlboro (Taylor & Smith, Upper Marlboro, on the brief), for appellant.

David B. Allen, Asst. Atty. Gen., (Francis B. Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, and Warren B. Duckett, Jr., State's Atty. and Frank Weathersbee, Asst. State's Atty. for Anne Arundel Co., Annapolis, on the brief) for appellee.

Argued before SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

ELDRIDGE, Judge.

After a jury trial in the Circuit Court for Anne Arundel County (Melvin, J., presiding), petitioner William B. Waugh was convicted of possession of marijuana with intent to distribute, was sentenced to three years' imprisonment, and was fined $3,000.00. The Court of Special Appeals affirmed Waugh v. State, 20 Md.App. 682, 318 A.2d 204 (1974), and this Court granted a writ of certiorari. The only issue before the Court of Special Appeals and before this Court was whether certain evidence should have been suppressed on the ground that it was obtained as a result of a search in violation of the Fourth Amendment to the United States Constitution. In our view, the evidence was obtained as a result of an unconstitutional search and, therefore, should have been suppressed.

The underlying facts on the Fourth Amendment issue were developed at a suppression hearing on November 1, 1972, and at the trial itself on May 16, 1973. On October 6, 1972, Waugh filed a motion to suppress evidence, which was heard by the circuit court on November 1. Maryland State Police Corporal Warren Pitt was called as a witness by the State, and he was the only witness at the hearing on the motion to suppress. Corporal Pitt testified that on August 22, 1972, he was assigned to investigate violations of the laws relating to controlled dangerous substances at Baltimore's Friendship International Airport. Pitt stated that on August 22, he received a call from Lt. Tomlin of the Baltimore City Police Department, who advised Pitt that Police Detective Schwartz, of Tucson, Arizona, had telephoned Lt. Tomlin concerning a shipment of marijuana believed to be en route to Baltimore on that day. At 7:45 p. m., Corporal Pitt telephoned 'by view telephone' Detective Schwartz of the Tucson 'Metropolitan Narcotics Unit' who gave Pitt a complete description of the petitioner Waugh. Detective Schwartz informed Corporal Pitt that Waugh had left Tucson on American Airlines Flight 324, and that after a stop in Dallas, Texas, Flight 324 was due to arrive at Friendship Airport at 11:25 p. m. Schwartz told Pitt that Waugh would be in possession of two yellow 'American Tourister' suitcases containing a total of eighteen bricks of marijuana.

With respect to how Detective Schwartz knew that the suitcases contained marijuana, Corporal Pitt testified at the suppression hearing as follows (emphasis supplied):

'He advised me that on information received from a reliable confidential informant, he went to the airport on information that this subject and the bags, or luggage contained the marijuana. As a result of this information he advised me that he went to the airport, observed the luggage, observed the subject, as I described, and smelled what he knew to be marijuana from his past experience. He advised me that he had been in law enforcement for approximately ten to twelve years. And from his experience and his arrests had led to prior convictions for narcotic violations. As a result of the smelling of the suitcases and the information from the informant, (he) in fact, did open the two pieces of luggage and did, in fact, observe thirty-one bricks of marijuana in the above suitcases.'

Corporal Pitt went on to testify that Detective Schwartz advised him that Schwartz had removed thirteen of the bricks, leaving eighteen bricks of marijuana remaining in the suitcases. Pitt stated that he had no personal knowledge of Schwartz's ability to detect the odor of marijuana and that he did not know why Schwartz had removed the thirteen bricks.

Pitt did not, after receiving the information from Schwartz, obtain an arrest warrant or a search warrant. Instead, he spent the remaining four hours until arrival of the flight establishing the arrival location of the aircraft and, with the aid of two other officers, setting up a surveillance of the baggage claim area. After the flight arrived, Corporal Pitt observed Waugh, as previously described by Detective Schwartz, entering the baggage claim area. When Waugh picked up the two suitcases, the officers approached him, identified themselves as law enforcement officers, and informed him that he was under arrest. All three officers then took Waugh, along with his luggage, to a second-floor office in the airport, and advised him of his constitutional rights. A search of the luggage was conducted and revealed eighteen bricks of marijuana and personal articles belonging to Waugh.

At the conclusion of the suppression hearing, counsel for Waugh argued, inter alia, that the search of the suitcases in Tucson was unlawful because there was no showing that Schwartz had a warrant and because Schwartz's statements concerning an informant and Schwartz's smelling the odor of marijuana coming from the suitcases, were insufficient to establish probable cause for the search. Waugh's attorney went on to argue that the unlawful search in Tucson 'vitiated' the subsequent search at Friendship Airport. The court, however, denied the motion to suppress. In finding that Detective Schwartz in Tucson had probable cause to believe that the suitcases contained marijuana, the court specifically relied on the evidence indicating that Schwartz smelled the odor of marijuana coming from the suitcases.

On the day of the trial, May 16, 1973, prior to the beginning of the trial, Waugh filed a 'Renewed Motion To Suppress Evidence' and asked for a renewed hearing on the matter of suppression of the evidence obtained from the search of the suitcases. In the renewed motion, Waugh alleged that the testimony at the prior suppression hearing was inaccurate, in that Detective Schwartz in Tucson did not smell the odor of marijuana coming from the suitcases but in fact smell 'a sweet odor which . . . had proved in the past to be a cover-up' for marijuana. ¹ It was asserted that, therefore, Schwartz did not have 'probable cause to make entry into the suitcases.' At the beginning of the trial on May 16, the trial judge denied the renewed motion to suppress and the request for a hearing on the ground that the 'matter has already been determined' by the court at the suppression hearing. ²

Corporal Pitt was called as the State's first witness at the trial and his testimony was, for the most part, the same as at the suppression hearing. However, Corporal Pitt's trial testimony differed in one material respect from his earlier testimony. At the suppression hearing Pitt stated that Detective Schwartz had told him that Schwartz smelled the odor of marijuana coming from the suitcases. At the suppression hearing, Pitt said nothing about any other odor. However, during cross-examination at the trial, Pitt testified:

'At the time of the conversation with Detective Schwartz over the phone on the 22nd day of August, 1972, he advised me that he had smelled an odor of marijuana and also what he recognized as being a cover-up odor commonly used, talcum powder for example.'

More significantly, Corporal Pitt testified that subsequent to his telephone conversation with Detective Schwartz, Schwartz sent Pitt a written report in which Schwartz stated that the only odor which he smelled was 'an odor that he recognized as a cover-up for marijuana,' apparently talcum powder.

After the trial, Waugh filed a motion for a new trial raising again the constitutionality of the search of his suitcases, and arguing that Detective Schwartz lacked probable cause to search the suitcases in Tucson. During the hearing on the motion, Waugh's attorney relied on the trial testimony disclosing that Detective Schwartz had actually smelled something other than marijuana. In denying the motion for a new trial, the trial judge reiterated that he believed himself to be 'bound by (the) . . . ruling' at the suppression hearing.

In affirming Waugh's conviction, the Court of Special Appeals first held that Corporal Pitt had probable cause to search the suitcases at Baltimore's Friendship Airport because Detective Schwartz had told Pitt that Schwartz had actually seen the bricks of marijuana in the suitcases. The Court of Special Appeals went on to hold that the rationale of cases involving warrantless searches of vehicles, i. e., the so-called Carroll doctrine, ³ was fully applicable to the warrantless search of suitcases, and that, therefore, probable cause to believe that the suitcases contained evidence of crime, coupled with exigent circumstances, rendered a warrantless search of suitcases constitutionally permissible. Reliance was placed on several cases from other jurisdictions holding that the Carroll doctrine is applicable to searches of suitcases, trunks, and other movable containers. ⁴ Alternatively, the Court of Special Appeals held that the search by Officer Pitt in Baltimore could be justified as a search incident to a lawful arrest under the principles set forth in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, reh. denied, 396 U.S. 869, 90 S.Ct. 36, 24 L.Ed.2d 124 (1969). See also United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Howell v. State, 271 Md. 378, 318 A.2d 189 (1974).

For the search at Friendship Airport to have been lawful under either the Carroll doctrine or as a search incident to a lawful arrest, Corporal Pitt must have had probable cause to have searched the suitcases or to have arrested Waugh. As previously mentioned, the Court of Special Appeals found the...