By Robert C. Bonsib, Esq. & Megan E. Coleman, Esq.
As Judge Moylan begins the Court’s opinion in State v. White, No. 0891, SEPT.TERM, 2019, 2020 WL 5834924 (Md. Ct. Spec. App. Oct. 1, 2020) he invites us to embark on what he describes as a “three-dimensional Fourth Amendment voyage” allowing Ontavious Deshard White to be “our Odysseus.” Id. at *1. “[O]n such a full sea are we now afloat” because not only does this appeal present “with three different Fourth Amendment problems” but “[t]he particular combination of issues before us in this case…is one where each of the questions before us engages the gears of an entirely separate and distinct level or plane of Fourth Amendment inquiry.” Id. Each of these distinct planes are:
I. The Coverage or Applicability of the Fourth Amendment
II. The Merits or Substance of the Fourth Amendment
III. The Sanction, If Any, for a Fourth Amendment Violation
The Standard of Review
The standard of review applied by the Court in considering motions to suppress evidence under the Fourth Amendment is “limited to the record developed at the suppression hearing” and that the record is assessed “in the light most favorable to the party who prevails on the issue that the defendant raises in the motion to suppress.” Id. at *5. The motion court’s factual findings are accepted unless clearly erroneous, however, COSA will review de novo the “court’s application of the law to its findings of fact.” Id.
Regarding the burdens on each party at a suppression hearing, if the State makes a timely challenge to standing in the first instance, the burden is on the defendant to prove Fourth Amendment applicability to the situs of the search as well as the person who performed the search. When challenged, the defendant must also establish the Fourth Amendment coverage of himself under the circumstances. Id. at *6.
Once the defendant meets his burden to establish standing, the burden to justify a warrantless search then shifts to the State. As is discussed further herein, the failure of the State to make a proper and sufficient evidentiary record to justify a warrantless search is fatal.
Statement of the Facts
Officer Robert Padgett of the Anne Arundel County Police Department was tasked with locating and arresting White on an open arrest warrant charging White with armed carjacking, unlawful taking of a motor vehicle and handgun offenses. While on surveillance Officer Padgett observed White exit an apartment, enter a leased Elantra vehicle, drive to a car wash, and pull the vehicle into the third bay of the car wash. Officers positioned themselves on either side of the bay and White was subsequently arrested without incident.
White advised that the vehicle belonged to his girlfriend, however, Officer Padgett knew it was a leased vehicle that belonged to “All Car Leasing,” that it had been leased to a Roxanne Douglas (“Douglas”), and that the lease had expired one day prior to the stop.
According to Officer Padgett, the car was searched “based off evidence related to the armed carjacking” and at the time of the search, White stood about ten feet behind the vehicle, within the car wash bay. A handgun was recovered from the vehicle.
Douglas had loaned the car to White who was the sole occupant and driver of the vehicle when it left the apartment building.
Standing to Object
The White opinion first addresses the issue of whether White had standing to object to the search of a borrowed automobile that he was driving at the time he was stopped by the police. Standing is the “threshold question of the entitlement to litigate the merits of the search and seizure” and it is “exclusively a threshold question of applicability, concerned only with the coverage by the Fourth Amendment of the defendant who seeks to raise a Fourth Amendment challenge. Id. at *7.
The question in every case of standing “depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.” Id. (citing Rakas v. Illinois, 439 U.S. 128, 143 (1978) (addressing the Fourth Amendment rights of passengers in vehicles)).
The White Court reviewed the Supreme Court’s decision in Byrd v. United States, — U.S. —-, 138 S.Ct. 1518 (2018). In that case, Byrd was stopped outside Harrisburg, Pennsylvania by Pennsylvania State Troopers while driving a vehicle rented in another’s name. After learning that Byrd was not listed on the rental agreement as an authorized driver, that he had prior drug and weapons convictions, and that Byrd admitted he had a marijuana cigarette in the vehicle at the time, the troopers searched the rented vehicle and discovered body armor and 49 bricks of heroin in the trunk. The lower courts denied Byrd’s motion to suppress the evidence, concluding that he lacked a reasonable expectation of privacy in the car. After citing general principles on standing, the Supreme Court observed:
One who owns and possesses a car, like one who owns and possesses a house, almost always has a reasonable expectation of privacy in it. More difficult to define and delineate are the legitimate expectations of privacy of others.
On the one hand, as noted above, it is by now well established that a person need not always have a recognized common-law property interest in the place searched to be able to claim a reasonable expectation of privacy in it.
On the other hand, it is also clear that legitimate presence on the premises of the place searched, standing alone, is not enough to accord a reasonable expectation of privacy, because it ‘creates too broad a gauge for measurement of Fourth Amendment rights.’
Id. at *7-8 (citing Byrd, 138 S.Ct. at 1527 (internal citation omitted)).
The two concepts in cases like this one are often linked. ‘One of the main rights attaching to property is the right to exclude others,’ and, in the main, ‘one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude.’ This general property-based concept guides resolution of this case.
Id. at *8 (citing Byrd, 138 S.Ct. at 1527 (internal citation omitted)).
Similar to Byrd, White was a driver and the sole occupant of a rented vehicle who had lawful possession of the vehicle. Noting that the Supreme Court
[S]ees no reason why the expectation of privacy that comes from lawful possession and control and the attendant right to exclude would differ depending on whether the car in question is rented or privately owned by someone other than the person in current possession of it, much as it did not seem to matter whether the friend of the defendant in Jones v. United States, 362 U.S. 257, 267 (1960)…owned or leased the apartment he permitted the defendant to use in his absence. Both would have the expectation of privacy that comes with the right to exclude.
Id. at *9 (citing Byrd, 138 S.Ct. at 1528-29 (internal citation omitted)).
[T]he mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy.
Id. at *9 (citing Byrd, 138 S.Ct. at 1531).
Although White he was not listed on the leasing agreement, and although that contract had expired, applying Byrd, the White Court held that White had a legitimate expectation of privacy in the vehicle and concluded that the motion court erred in concluding that White did not have standing to challenge the search. Id. at *10.
Search of the Elantra
“[A]n arrest warrant cannot be substituted for a search warrant.” Faulkner v. State, 156 Md.App. 615, 642 (2004)), White was arrested on the basis of a valid outstanding arrest warrant. However, the arrest warrant was based on a crime that had occurred 10 miles away and 18 days earlier and the arrest warrant did not authorize a search of the Elantra. Accordingly, “the burden devolved upon the State to show that the warrantless search of the Elantra was reasonable pursuant to one of the jealously guarded exceptions to the warrant requirement.” White, at *10.
Judge Moylan then listed the potential exceptions:
1. Search Incident to a Lawful Arrest. Chimel v. California, 395 U.S. 752 (1969).
2. The Carroll Doctrine or Automobile Exception. Carroll v. United States, 267 U.S. 132 (1925); See also Moylan, “The Automobile Exception: What It Is and What It Is Not-a Rationale in Search of a Clearer Label,” 27 Mercer L.Rev. 987 (1976).
3. Hot Pursuit and Emergency Circumstances. Warden v. Hayden, 387 U.S. 294 (1967).
4. Stop and Frisk. Terry v. Ohio, 392 U.S. 1 (1968).
5. Plain View Doctrine. Coolidge v. New Hampshire, 403 U.S. 443 (1971); Arizona v. Hicks, 480 U.S. 321 (1987).
6. Consent. Schneckloth v. Bustamonte, 412 U.S. 218 (1973); Illinois v. Rodriguez, 497 U.S. 177 (1990).
7. The Special Exception of Arizona v. Gant. 556 U.S. 332 (2009).
With respect to Arizona v. Gant, Judge Moylan regards this as “an arguably additional exception that is difficult to characterize” and the one that the State relied upon in White to justified the warrantless search of the vehicle. White, at *11.
According to Judge Moylan the Gant opinion concludes with two separate and very different rationales: one of them fits neatly into a pre-existing and larger totality (search incident to a lawful arrest), while the other, which he describes as a “special ad hoc exception” to the warrant requirement, does not. Id. at *12. Gant held that police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.
Judge Moylan noted the White case does not deal with the arrestee being within reaching distance of the passenger compartment at the time of the search. Rather, the case concerns whether it is reasonable to believe the vehicle contains evidence of the offense of arrest. Gant authorizes the search of an automobile for evidence of crime upon a likelihood that such evidence is present in the car, whereas, the Carroll doctrine requires that the likelihood satisfy the probable cause standard. The Gant special ad hoc exception lowers the bar of likelihood to one of reasonable suspicion, but it does insist, unlike the Carroll doctrine, that the likelihood that such evidence exists occurs in conjunction with an arrest.
The Carroll Doctrine permits a search of the entire car including the trunk, but the Gant exception limits the search to the passenger compartment. The Carroll Doctrine places no limits on the character of the suspected evidence, but the Gant exception limits the predicate for the search to “evidence of the offense of arrest.” The Gant exception is neither an outgrowth of the Carroll Doctrine, nor an outgrowth of search incident law. White, at *12. The purpose served by the Gant exception is the discovery of evidence bearing on the crime for which the arrest is made. That is not remotely the purpose of a search incident.
The purpose of the search incident exception is to regulate the behavior of the arrestee in the course of his being arrested. It serves the twin purposes of 1) preventing the arrestee from grabbing a weapon and harming the arresting officer, and 2) preventing the arrestee from destroying any accessible evidence. Such evidence, moreover, can be evidence of any crime and need not be related to the crime for which the arrest was made. If, in the words of Gant’s first rationale, “the arrestee is within reaching distance of the passenger compartment,” the passenger compartment is ipso facto within Chimel’s universally recognized “reach, lunge, or grasp” of the arrestee. If White can reach it, it is within his reach, however, it is the second of Gant’s rationales that the White opinion addresses.
When the Elantra was searched in this case, White was standing “at least ten feet away” from the vehicle and was, moreover, standing behind a small wall surrounding the carwash bay. White was arrested as a suspect in an armed carjacking that had occurred 18 days prior to the arrest and at least twenty miles away from the original. The Court of Special Appeals agreed with the analysis of the trial in rejecting the State’s argument that the circumstances justified the search under the second Gant rationale. White, at *14. The trial court found that “both geographically and temporally, it’s too attenuated to apply that prong of Gant.”
The Sanction, If Any, For A Fourth Amendment Violation
Ordinarily the sanction for a Fourth Amendment violation would be the suppression, via the exclusionary rule, of the evidentiary fruit of the violation. However, there are instances in which the Supreme Court has decided that the prejudice suffered by the defendant from the violation is non-existent, or, at least, is not so severe as to make appropriate the heavy sanction of suppressing the evidence.
Judge Moylan identified and discussed three such recognized exceptions or exemptions.
1. Attenuation of Taint: Attenuation of taint exception recognizes that, even granting a Fourth Amendment violation, sometimes the causal connection between the violation and the ultimate recovery of the evidence is so attenuated by time and space and intervening circumstances that the exclusion of evidence is too high a price to pay for a violation that only modestly contributed to the recovery of the evidence.
2. Independent Source: The independent source exception recognizes the circumstance where the Fourth Amendment violation, albeit unquestionably having occurred, turns out to be redundant. It is applicable when, notwithstanding the Fourth Amendment violation, the police had already obtained the incriminating information from an independent source, completely free of any unconstitutional taint.
3. Inevitable Discovery: The inevitable discovery exception permits the government to cleanse the fruit of poison by demonstrating that the evidence acquired through improper exploitation would have been discovered by law enforcement officials by utilization of legal means independent of the improper method employed.
It is this third exception that the State sought to rely upon in White.
In Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) the Supreme Court explained the rationale for the inevitable discovery exception and stated that if the government can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police, there is no rational basis to keep that evidence from the jury in order to ensure the fairness of the trial proceedings because the State has gained no advantage at trial and the defendant has suffered no prejudice.
Judge Moylan, quoting from Williams v. State, 372 Md. 386 (2002) reviewed Judge Raker’s analysis of the differences between inevitable discovery and independent source where she noted that:
There is a close kinship between inevitable discovery and independent source but although they are closely related, they are analytically distinct. … The two doctrines differ in that ‘under the independent source doctrine, evidence that was in fact discovered lawfully, and not as a direct or indirect result of illegal activity, is admissible.’ Under the inevitable discovery doctrine, evidence is admissible that inevitably would have been discovered through lawful means even though the means that led to its discovery were unlawful.
White, at *17 (citing Williams, 372 Md. at 410-11).
Judge Moylan addressed the issue of inevitable discovery to the specific facts, and more particularly to the record, in White, reminding that when the State seeks to rely upon an exception, such as inevitable discovery, it is the State that bears the burden to prove with respect to the applicability of the exception and that,
In reviewing a claim of inevitable discovery, the key issue is the inevitability factor. The key procedural factor is that the burden of proof is on the State to establish inevitability, not upon the defendant to disprove it. A scenario wherein very little is said one way or the other by either party argues strongly against the State.
White, at *19.
In White the Court found that “very little is said” in the record and the State suffered the consequence of its failure to make a sufficient record. It is not clear as to whether this failure was the result of there not being sufficient facts available to support the applicability of the exception or whether the State simply failed to make a proper record.
“The inevitable discovery scenario urged by the State in this case is that at the time of [White’s] arrest, the Elantra was blocking the flow of business at the car wash and had to be removed from that position.” White, at *18. The State’s argument was that:
Because of the status of the car being a leased vehicle that’s a day after it was due, not leased to the Defendant, there’s no evidence that he was even authorized to drive it, the officers in that case had the ability to then tow the vehicle. There was nobody immediately available to come get it that they knew of, and I believe because of the background research that they did on the vehicle, knowing that it was leased, knowing that it was expired, they intended to tow the vehicle, which would have inevitably led them to have to do an inventory search to protect themselves and whoever took the vehicle from any valuables, and this gun was in a location which would have naturally been searched in an inventory search, that being on the passenger seat, and they would have found the gun that way, Your Honor.
White, at *18 (emphasis supplied in White).
The issue for COSA was whether that posited scenario was, indeed, inevitable. COSA concluded that it was not. “The primary problem with the State’s inevitable discovery argument in this case is that it takes too much for granted.” Id. However, inevitable discovery “is not the norm” and the burden of proof is cast upon the State to prove its entitlement to the exception. Id.
COSA found that the State’s justification was
[E]xceedingly skimpy and was exceedingly conclusory…as if the mere mention of ‘towing the car’ was an ‘Open, Sesame’ proclaiming all that need be said about what can be a complicated and nuanced community caretaking function. The burden of proof contemplates more than intoning some magic words. The notion, however, seems to have arisen that once an officer testifies that he intends to tow the car, the entire Inevitable Discovery Doctrine falls automatically into place. It doesn’t. On the road to Inevitable Discovery, the State’s burden of proof involves more than negotiating a barely discernible speed bump. An intent to tow the car is not a shibboleth.
Id. at *19.
“The key procedural factor is that the burden of proof is on the State to establish inevitability, not upon the defendant to disprove it.” Id. COSA was not convinced that it was inevitable that the Elantra would have been impounded and towed away by the police, rather than parked on an adjoining street. The transcript did not reflect that any police regulation forbade such an action, nor was it something of which the court would take judicial notice. Id.
Aside from the inevitability of the impoundment, there was an “additional inevitability issue of equal, if not greater, significance” – the ultimate inventory search itself and the attendant preparation of an inventory list. The towing procedure does not speak for itself, but must be established by the State. In this case, the Elantra was never towed, no inventory search was ever made, and no inventory list was ever supplied to anyone (at least as far as this record reflects). Id. “If the towing was inevitable, why did it not happen?” and “why was the court not told about it?” The State did not prove a case of inevitable discovery.
To quote directly from Judge Moylan’s concluding paragraph of the opinion in White, “[o]n this appeal, [White], notwithstanding his laconic original contention, has truly covered the entire Fourth Amendment universe. To the three bedrock questions he has posed, we supply the following answers.” White, at *21.
I. Was the Fourth Amendment applicable? Yes. Byrd v. United States, adequately established that White enjoyed standing to object to the search of the borrowed car he was driving when stopped.
II. Was the Fourth Amendment satisfied on its merits? No. The warrantless search of the car did not qualify for the special Gant exception to the warrant requirement. Presumably, the exclusionary rule will be the sanction.
III. Did the State qualify for the Inevitable Discovery exemption from the sanction of the exclusionary rule? No. The State failed to prove that either the towing of the automobile or an inventory search of the automobile was inevitable.