State v. Paynter, 257

STATE OF MARYLAND v. DANIEL A. PAYNTER

No. 257

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

September 28, 2017

Circuit Court for Prince George's County

Case No. CT170050X

REPORTED

Eyler, Deborah S. Beachley, Moylan, Charles E., Jr., (Senior Judge, Specially Assigned), JJ.

Opinion by Moylan, J. Circumstances frequently result in the police having to impound a citizen's automobile. For the mutual benefit of police and citizen alike, such impounding will routinely be accompanied by an inventorying of the contents of the automobile. This procedure is not necessarily a part of an adversarial "cops and robbers" scenario in a typical criminal investigation and trial. It may be, rather, what the Supreme Court has characterized as a "community caretaking function." Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973):

Local police officers . . . frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.

(Emphasis supplied).

Courts, therefore, must scrupulously forbear from reflexively looking upon this neutral police function with cynical disdain and must refrain from cavalierly dismissing such police behavior as presumptively a subterfuge. A modicum of trust would be more appropriate.

The Present Case

The appellee, Daniel A. Paynter, was indicted in Prince George's County on January 12, 2017 for the possession of marijuana with the intent to distribute and related offenses. He moved to have the physical evidence suppressed because of an alleged violation of the Fourth Amendment. On March 24, 2017, the court granted the motion to suppress.

The State's Interlocutory Appeal

The State filed a timely appeal on April 3, 2017. The appeal is authorized by Maryland Code, Courts and Judicial Proceedings Article, § 12-302(c)(4). Pertinent are subsections (c)(4)(iii) and (iv):

(iii) Before taking the appeal, the State shall certify to the court that the appeal is not taken for purposes of delay and that the evidence excluded or the property required to be returned is substantial proof of a material fact in the proceeding. The appeal shall be heard and the decision rendered within 120 days of the time that the record on appeal is filed in the appellate court. Otherwise, the decision of the trial court shall be final.

(iv) Except in a homicide case, if the State appeals on the basis of this paragraph, and if on final appeal the decision of the trial court is affirmed, the charges against the defendant shall be dismissed in the case from which the appeal was taken. In that case, the State may not prosecute the defendant on those specific charges or on any other related charges arising out of the same incident.

(Emphasis supplied).

The record was filed with this Court on June 8, 2017. Accordingly, our decision must be rendered no later than October 5, 2017. We heard oral argument on September 5, 2017.

The Facts In A Nutshell

Other than being a routine traffic stop, the case against the appellee did not begin in any sense as a criminal investigation. On December 13, 2016, Officer Donald Rohsner was on routine traffic duty, using radar to look for speeding violations in the 800 block of Talbot Avenue in Laurel. He observed the appellee's white 2014 Chevrolet Impala traveling at "a speed of 50" in a clearly marked "30 mile per hour zone." He initiated a stop of the vehicleand relayed the information about the car to "police dispatch." The appellee was the vehicle's driver and sole occupant.

Officer Rohsner ran the appellee's information through the Laurel Police Department's communication system and was informed that the appellee's driver's license was "suspended." When the officer further checked the registration status of the vehicle itself, he learned "that the tags were suspended through the Motor Vehicle Administration (M.V.A.) and that they were to be - there was a pick-up order on them, which means we must remove them and take them - put them into evidence so the vehicle did not have tags." During the stop, Officer Rohsner received a further dispatch that "said 10-0, possibly armed, which is a caution code that he was possibly armed." Based on that cautionary alert, "you would want to have a secondary officer for safety purposes."

Officer Nicholas Cahill responded to the traffic stop as that secondary officer. Officer Cahill, who also testified, confirmed that when the police encounter a "pick-up order," they "have to take the tags off the vehicle and we return them to the M.V.A." Officer Cahill went on to describe the written and established procedure of the Laurel Police Department with respect to inventories. He submitted the printed seven-page policy of the Department as State's Exhibit 1. He further testified that he had received "field training" on the proper implementation of the inventory procedure. He explained that the "purpose of an inventory search is to document all items in the vehicle, high value, anything you deem might be in the vehicle that needs to be inventoried." His direct examination pointed out:

Q. Okay. You indicated that [in] your inventory policy, you search for valuables.

A. Correct.

Q. What -- what constitutes a valuable item in your --

A. It could be a cell phone, hum, any debit cards, money left in the vehicle, clothing, tools.

Q. Okay. How do you acquire -- which items you encounter during an inventory search would require safekeeping?

A. We don't take anything for safekeeping. We will usually just leave that valuable in the vehicle. Hum, and it will stay in the vehicle while it's impounded.

There was no cross-examination.

Officer Cahill testified that he would routinely search the glove compartment, the central console area, and the trunk because that is where valuables would likely be found. Officer Cahill went on to explain that the general orders of the Laurel Police Department governing inventories require the use of a motor vehicle tow report form. A copy of that tow report was offered and admitted as State's Exhibit 2. On that form, the inventory in this case listed "a blue iPhone in the center console" and "seven Mac computers in the trunk of the car." In the course of making the inventory, the police also discovered and seized 51 grams of marijuana.

An overview of the suppression hearing is significant. The appellee did not testify and offered neither witnesses nor evidence on his motion to suppress. With respect to the two officers called by the State, the appellee asked not a single question by way of cross-examination.

The appellee's argument before the suppression hearing judge referred to Officer Rohsner's body camera which recorded his inventory searching. It showed three pairs of tennis shoes, a spare tire, a jack, and jumper cables that were not listed as part of the inventory. The appellee's argument was that the inventory was thereby flawed because it failed to include all items found in the car.¹ Logically implicit in such an argument is that such a subsequent failure to fill out the inventory listing with the requisite completeness would date back to invalidate the earlier discovery of the items to be inventoried. The search for the items, of course, was already fait accompli when the inventorying officer first puts pen to paper. In extremely summary terms, however, the trial judge's ruling bought the appellee's argument:

What the video makes clear is that what the police conducted is not an inventory, because an inventory lists everything that is and is not based on a subjective criteria as to what is quote valuable, unquote. The motion to suppress is granted as to the contents of the trunk.

(Emphasis supplied). That is the sum total of the ruling. That is the ultimate constitutional ruling that we shall examine de novo.

The Supreme Court And Inventory Searches

To keep a proper sense of precedential proportion, we note that we are dealing, of course, with Fourth Amendment constitutional law. The Maryland opinions, which the appellee seems to argue almost exclusively, are but implementary and/or descriptive of that Fourth Amendment law. They are not themselves the core law to be applied. Whenever lawyers start cherry-picking phrases from random cases (as inevitably they must), it is always healthy to be able to go back to the original source instead of relying too heavily on subsequent glosses on that original source. It is always advisable to be cautious when using secondary sources. As a word is changed here or an emphasis is added there in making a gloss, and then a gloss upon a gloss, it is easy for the gloss to stray from the original message. If you want to know what South Dakota v. Opperman holds, therefore, read South Dakota v. Opperman.

For the law governing the inventorying by the police of the contents of an automobile about to be impounded, the original source is South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976). It was and it remains the Fourth Amendment pole star. In Opperman, as here, the police determined that the vehicle in question would be towed to the impounding lot because of a violation of the traffic (parking) law. It had been illegally parked for a number of hours in a restricted zone. As in the present case, no crime other than the illegal parking itself was even suspected. The officer unlocked the car and, "using a standard inventory form pursuant to standard police procedures," inventoried the contents of the automobile, "including the contents of theglove compartment which was unlocked." 428 U.S. at 366. In a plastic bag in the glove compartment, the police found and seized marijuana.

Opperman's motion to suppress the marijuana on the basis of a Fourth Amendment violation was denied and he was convicted of unlawful possession. The Supreme Court...