Sellman v. State

828 A.2d 803

152 Md. App. 1

Marvin Leonard SELLMAN v. STATE of Maryland.

No. 1627, Sept. Term, 2002.

Court of Special Appeals of Maryland.

July 7, 2003.

Carrie Leonetti, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for Appellant.

Steven L. Holcomb, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for Appellee.

Argued before SALMON, SONNER and DEBORAH S. EYLER, JJ DEBORAH S. EYLER, Judge.

In a bench trial, the Circuit Court for Anne Arundel County convicted Marvin Leonard Sellman, the appellant, of possession of a controlled dangerous substance and driving on a revoked license. The court sentenced the appellant to one year in prison for the possession conviction and six months in prison for the driving on a revoked license conviction, to be served consecutively.

On appeal, the appellant asks two questions, which we have shortened:

I. Did the trial court err in denying his motion to suppress evidence?

II. Was the evidence sufficient to support his possession conviction?

For the following reasons, we answer the first question "yes," and therefore shall reverse the appellant's conviction for possession of a controlled dangerous substance. We answer the second question "yes" as well. Accordingly, we shall remand the case to the circuit court for further proceedings not inconsistent with this opinion.

FACTS AND PROCEEDINGS

On December 19, 2001, at 12:30 a.m., Anne Arundel County Police Officer Robert Novotny was on patrol on Route 198 in Anne Arundel County when he spotted a Mercury Tracer "hatchback" vehicle with blue front signal lights and a cracked windshield, both in violation of the Maryland Transportation Code. The officer activated his cruiser's emergency lights to make a traffic stop. The driver complied, pulling the Tracer into the lighted parking lot of a service station.

Officer Novotny approached the Tracer, saw that the appellant was its sole occupant, and asked him to produce his driver's license and the vehicle's registration. The appellant produced a Maryland identification card and told the officer that his driver's license was suspended. The appellant also told Officer Novotny that he did not know where the vehicle registration was because the Tracer belonged to his cousin.

Officer Novotny returned to his cruiser and ran a Motor Vehicle Administration ("MVA") check of the appellant's driving record, which showed that his driver's license had been suspended in 1992 and revoked in 1993, and remained revoked. The officer also ran an MVA check on the status of the Tracer and its registration tags and learned that there was an outstanding "pickup order" for the car and an order to secure the tags, which were expired. In addition, Officer Novotny determined that the owner of the Tracer was one Travis Delante Bryant of Upper Marlboro.

After obtaining that information, Officer Novotny placed the appellant under arrest for driving while revoked. He performed a pat-down of the appellant's person, which revealed nothing, and then placed him in the front passenger seat of the police cruiser with the seat belt buckled around him.

Officer Novotny called for a tow truck. He then proceeded to search the Tracer. In a red nylon bag in the hatchback area of the vehicle, the officer found a handgun and a glassine bag containing a green substance, later identified as 24.34 grams of marijuana.

The appellant was charged with transporting a handgun, possession of a controlled dangerous substance (marijuana), driving while suspended, and driving while revoked. The court granted the appellant's motion for judgment of acquittal on the driving while suspended charge and found the appellant not guilty of transporting a handgun. As noted above, the court found the appellant guilty of possession of marijuana and driving while revoked.

Additional facts will be included in our discussion of the issues.

DISCUSSION

I.

The appellant contends that the trial court erred in denying his motion to suppress from evidence the marijuana Officer Novotny found in the red nylon bag in the hatchback area of the Tracer. He maintains that the search of the Tracer and seizure of the contraband violated his rights under the Fourth Amendment to the United States Constitution; and therefore the contraband should have been excluded from evidence. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (holding that Fourth Amendment and exclusionary rule is applicable to the States under the Fourteenth Amendment).

Ordinarily, in an appeal from the denial of a motion to suppress evidence on Fourth Amendment grounds, we look only to the evidence adduced at the suppression hearing. Cartnail v. State, 359 Md. 272, 282, 753 A.2d 519 (2000). In this case, there was no suppression hearing. Instead, the court made the suppression ruling during the bench trial. When the prosecutor was questioning Officer Novotny, the State's first witness, and asked what he found in the course of searching the Tracer, defense counsel objected. The court asked whether the objection was based on a search and seizure question. Defense counsel answered that it was. The court and counsel then agreed that the court would rule on the suppression objection at the end of Officer Novotny's testimony. Accordingly, the evidence pertinent to the suppression ruling in this case is the testimony of Officer Novotny at trial.

Officer Novotny testified that he learned from the MVA check that the tags on the Tracer were no longer in effect and "there was an outstanding pickup order, and an investigation to secure those tags." After arresting the appellant for driving while revoked and placing him in the police cruiser, Officer Novotny called for a tow truck and then "proceeded to conduct a search of the vehicle, prior to having it towed." By then, Officer Kelly Harding, also of the Anne Arundel County Police Department, had arrived on the scene. She stood by the cruiser while Officer Novotny undertook the search.

Officer Novotny testified that he searched the automobile by beginning at the front and working his way to the back. He explained that he "always start[s] at the front of the vehicle around the driver's seat; that's just my habit...." When his search reached the back of the vehicle, he used the key from the ignition to unlock and open the hatchback door. The inside of the hatchback consisted of a "small lidtype structure overtop of a compartment." Officer Novotny lifted the lid-type structure and saw inside the compartment a red nylon bag bearing the word "Marlborough" [sic]. He opened the uppermost, small section of the red bag and saw a glassine baggie containing greenish vegetable matter, which he recognized to be marijuana. He then opened the bottommost, large section of the red bag and found a silver revolver with black duct tape on it.

When in response to questions by the prosecutor Officer Novotny began to describe other items he found in the "Marlborough" bag, including a pair of shorts and ski masks, the defense lodged objections on the ground that the other items were not relevant, and the objections were sustained.

Officer Novotny testified on cross-examination that he performed an inventory of the contents of the Tracer, which "would have been on [his] tow slip[,]" and that the inventory would have included the contents of the passenger compartment of the vehicle. He stated that he did not give the appellant a copy of the inventory, however. Also, in response to questions by defense counsel asking if he recalled whether there were packages on the front seat of the car, Officer Novotny testified that he did not recall.

At the conclusion of Officer Novotny's testimony, the court heard argument of counsel on the suppression motion. Defense counsel argued that the search was not a constitutionally permissible search of a vehicle incident to arrest, under New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), because the hatchback compartment was not part of the passenger compartment of the car; rather, it was akin to a car trunk.

The prosecutor responded by saying that even if the court were not inclined to find that the search was a proper search incident to arrest, "the stronger argument... is that [the car] had to be towed" because of the expired tags and that the search was proper as an inventory search. When the court questioned the prosecutor about Officer Novotny's not having produced the inventory, the following colloquy took place:

[PROSECUTOR]: [Officer Novotny] testified that he did do the inventory. [The State is] not obligated to give you the inventory slip in order to prove that he did an inventory, unless they want to somehow suggest that he didn't. I didn't understand that to be the argument. But the car was in fact towed. We certainly can put into evidence the tow slip, which moved it. I didn't consider that an issue, but I am happy to recall him and put that into evidence, because I do have it.

But the car was towed, and in order to have it towed, they had to do an inventory search of it.

THE COURT: Right.

[PROSECUTOR]: So, I think that is certainly consistent. It would be a different story, I agree with Your Honor, if we couldn't show the car had been towed, and it sat on the side of the road; it wouldn't make any sense that he did an inventory slip. But if he is going to have it towed, under the County rules they wouldn't have been able to tow it without him giving them the inventory slip.

So, he testified it was towed. It was in fact towed. I would argue that obviously at an inventory search they would have to search all of it anyway, and that it would have been acceptable under an inventory search.

Defense counsel responded that he "agree[d] with [the prosecutor] that the evidence is clear that the vehicle was going to be towed, and that that would have provided justification to do an inventory search." He argued,...