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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2741 SEPTEMBER TERM, 2008

ARNELL FAIR v. STATE OF MARYLAND

Eyler, James R., Zarnoch, Kenney, James A., III (retired, specially assigned), JJ.

Opinion by Kenney, J.

Filed: March 30, 2011

Appellant, Arnell Fair, was arrested and charged with possession of a firearm by a convicted felon, carrying or transporting a handgun in a vehicle, and possession of marijuana, a controlled dangerous substance. A jury, sitting in the Circuit Court for Baltimore City, convicted appellant of possession of a firearm by a convicted felon and possession of marijuana. He was sentenced to five years without the possibility of parole for the firearm conviction and to a consecutive one year for the marijuana possession conviction. He presents the following issues for our review, which we have slightly reworded: I. Did the circuit court err by denying appellant's pretrial motion to suppress the key and the remote to the Cadillac automobile, the marijuana, or the firearm found in the Cadillac under the Fourth Amendment of the United States Constitution and Article 26 of the Maryland Declaration of Rights? II. Did the circuit court err by denying appellant's trial motion to exclude the City of Baltimore paycheck to appellant found in the Cadillac on the basis of hearsay? For the following reasons, we affirm the judgment of the circuit court. FACTS AND PROCEEDINGS Appellant was arrested for possession of marijuana by Detective Steven Mahan of the Baltimore City Police Department. While appellant was in his custody, the detective observed a vehicle with suspected marijuana in plain view that he had reason to believe had been driven by appellant. He searched the vehicle and found a firearm in the center console next to a combined paycheck and pay-stub (collectively, "the paycheck") in appellant's name. Appellant was charged with possession of marijuana along with the firearm charges.

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Before trial, appellant moved to suppress the marijuana found inside the vehicle, the handgun, and the remote and the keys to the vehicle. At the suppression hearing, Detective Mahan testified to the following: On the evening of June 30, 2007, he was working security as a second job for Central Parking Agency at a garage located at 414 Water Street in Baltimore, Maryland. At approximately 10:20 pm, he observed, from approximately ten or fifteen feet away, appellant and Scott Tanner, walking down a garage ramp toward him "drinking and smoking a brown hand-rolled cigar." He saw appellant pass the cigar to Tanner, and both were smoking it. Upon seeing Detective Mahan, Tanner dropped the cigar saying, "Yo, the police." Appellant and Tanner also poured out their drinks. Detective Mahan placed them under arrest, handcuffed them, and searched them. He found a remote along with a set of keys to a Cadillac on appellant and a set of keys to a Lexus on Tanner. He also recovered the cigar. After advising both men of their Miranda rights, Detective Mahan asked Tanner where he parked his car. Tanner told him that "he drove in with the Lexus;" appellant said that "he drove in with Mr. Tanner." Detective Mahan, with both men in his vehicle, then drove to locate Tanner's vehicle in the garage. Tanner identified his vehicle when they came to it. Detective Mahan's testimony on direct examination as to the sequence of events after Tanner identified his vehicle was somewhat inconsistent with his testimony on re-direct examination. On direct examination, Detective Mahan testified that, at this point in time, he -2-

separated the men, and, after being separated from appellant, Tanner told him that "he drove the Lexus and that his friend, [appellant], drove the Cadillac in behind him." Tanner identified the Cadillac that was parked next to the Lexus as appellant's vehicle. Detective Mahan "hit . . . either the panic button or the lock button" on the remote to the Cadillac, "and the horn sounded." He looked inside the Cadillac, and, in the center console,"in plain view" saw "a clear sandwich bag that contained a green substance of suspected marijuana." Detective Mahan testified that he then performed a "search inventory to tow." Inside the vehicle's center console, he found a "Hungrade (sic) .9 millimeter handgun" and "a paycheck stub" in appellant's name. On re-direct examination, Detective Mahan testified as follows: [Prosecutor]: And when in the sequence of events did . . . Mr. Tanner [] advise you that [appellant] drove the Cadillac that was next to his car? Detective Mahan: Once I was able to separate them and had some distance between Mr. Tanner and I, when he was out of earshot of Mr. Fair.

Q.

Was that before or after you looked in the Cadillac and saw the marijuana? I believe it was after. Okay. And was it before or after you hit the button? I think it was after. I believe it was after.

A. Q. A.

The motion court denied the motion to suppress. It concluded that the search of -3-

appellant incident to his arrest for possession of the marijuana cigar "was constitutionally permitted," and that "[l]ooking in the Cadillac, opening it, and seizing the marijuana visible from the exterior of the Cadillac was [] constitutionally protected." According to the motion court, "[t]he question [was] really whether opening the console where the gun was found [was] also constitutionally permitted." The court, through the following analysis, determined that the search of the console was permissible: The facts suggest strongly that Detective Mahan had every intention of towing the cars of the arrestees, Tanner and [appellant], before he ever saw the cars or before he ever observed the marijuana in [appellant's] car. When the detective and the two arrestees were still downstairs in the garage away from [appellant's] car, Detective Mahan seized the keys with the remote. Both Mr. Tanner and [appellant] had keys to different cars and Detective Mahan asked both about how they got there and quizzed Tanner out of [appellant's] presence about how [he] got there. So it is clear that Detective Mahan was focused on finding those cars, given the policy of Central Parking Garage to have them removed. In addition, as to the Defendant's car, the need for it to be towed was heightened when Detective Mahan observed the marijuana in plain view in the car. The bottom line here is that there is no subterfuge. Detective Mahan was not engaged in subterfuge to search the Defendant's car. Rather, knowing that the car was going to be towed, either because that was the policy of Central Parking or because contraband had been found there, Detective Mahan knew the car was going to be towed. Given this knowledge, Detective Mahan's opening of the console where the gun was observed was constitutionally -4-

permissible, the inventory search was necessary to protect the police from claims and disputes over lost property, and to protect the Defendant's property while it remained in police custody. Therefore, there was a bona fide inventory and not an investigative search. Before trial, appellant moved to exclude from evidence the paycheck based on hearsay, arguing that it would be offered to prove the truth of its contents, most specifically, the date. The State argued that it was "going to be arguing that . . . because the piece of paper was found with his name and the paycheck and everything with the gun, that he had to have gone in that console at some point with the piece of paper there, not that he definitively owns the car or anything else." Defense counsel explained that use of the paycheck to prove the date it was written was hearsay, unless the check came in pursuant to a business records exception. The circuit court held that "[t]he document is not being offered for the truth of the matter asserted, it's being offered to show the Defendant's possessory interest in the vehicle," and denied the motion. Appellant then moved to redact the date on the paycheck, which the court denied without comment. Detective Mahan was the State's only witness at trial, and he testified substantially as he had at the suppression hearing. In addition to his previous testimony, he testified that the Cadillac was registered to Dashae Mariano, but that it was not considered stolen. On direct examination, the State questioned the detective on finding the paycheck in the center console. He testified to finding the paycheck, but, at that time, did not testify as to the date on the paycheck. The prosecutor then moved the paycheck into evidence. At that -5-

time, defense counsel stated, "And Your Honor, I would just renew my objection." The court admitted the paycheck into evidence. On redirect-examination, the prosecutor returned to the topic of the paycheck and the following exchange took place: [Prosecutor]: And Mr. Fair at some point had left his paycheck in there?

[Detective Mahan]: Yes, ma'am. [Prosecutor]: ... [Defense counsel]: Your honor, just object for the record, pursuant to bench conference, Your Honor, that we already had. [The Court]: ... [Detective Mahan]: The pay period began 6/18/07 through 6/24/07, the pay date was 6/29/07. [Prosecutor]: The day before this incident? Overruled. And what is the date on the paycheck?

[Detective Mahan]: Yes, ma'am. It was stipulated that appellant "is prohibited from possessing a firearm or ammunition because of a prior disqualifying crime;" that the "gun in this case was found to be operable;" and that "the substance recovered and tested was marijuana." In closing, the prosecutor argued to the jury: Nobody else had access to that vehicle that night. The -6-

only person who had access to that vehicle is Mr. Arnell Fair. Mr. Arnell Fair, who knew that there was a gun in that car because he was trying to distance himself. Mr. Arnell Fair who knew that there was a gun in there when he put his paycheck in there within the last 24 hours, because the paycheck was dated the day before and it had to be within 24 hours. The jury found appellant guilty of the counts of possession of marijuana and possession of a firearm by a convicted felon. He noted this timely appeal. DISCUSSION I. Suppression Motion We are first asked to consider whether the circuit court erred by denying appellant's pretrial motion to suppress the keys and the remote to the Cadillac automobile, the marijuana, and the firearm found in the Cadillac under the Fourth Amendment of the United States Constitution and Article 26 of the Maryland Declaration of Rights. In Daniels v. State , 172 Md. App. 75, 87 (2006), we addressed the standard of review of rulings on suppression motions: In reviewing the denial of a motion to suppress evidence under the Fourth Amendment, we look only to the record of the suppression hearing and do not consider any evidence adduced at trial. Ferris v. State , 355 Md. 356, 368, 735 A.2d 491 (1999). We extend great deference to the findings of the hearing court with respect to first-level findings of fact and the credibility of witnesses unless it is shown that the court's findings are clearly erroneous. Reynolds v. State , 130 Md. App. 304, 313, 746 A.2d 422 (1999), cert. denied , 358 Md. 383, 749 A.2d 173 (2000), cert. denied , 531 U.S. 874, 121 S. Ct. 178, 148 L. Ed. 2d 122 (2000). Moreover, we view those findings of fact, and indeed the record as a whole, in the light most favorable to the State. Id . We review the court's legal conclusions de novo , however, -7-

making our own independent constitutional evaluation as to whether the officers' encounter with appellant was lawful. Id. The circuit court, in its analysis, addressed the propriety of Detective Mahan's search of the Cadillac and whether it was an inventory or investigative search. However, appellant's argument, at trial and on appeal, centers on whether Detective Mahan had the right to utilize the keys and remote of the Cadillac that were in his possession as a result of the initial arrest to establish a connection between the appellant and the Cadillac. At the pre-trial suppression hearing, defense counsel argued: What happened here is the detective sees that both of these individuals have keys on them and then the detective attempts to really do a further investigation based upon what's found on that person. Instead of really doing a caretaking function and making sure that whatever personal items on him are catalogued and turned in to protect the Defendant, he goes on a further search. He admits that he does that. That, in fact, he was looking for more fruits of some crime and then they go onto the third floor. Once they get to the third floor, Your Honor, the officer states that, in fact, that it was some testimony from the coDefendant that causes him to look in the window. He also states that, in fact, that it was marijuana that was in plain view. Nonetheless, Your Honor, what the officer does to connect this particular - - to connect the possession of the marijuana with Mr. Fair is he presses the button on the remote control. At that point, he realizes that, in fact, that the key and the remote that was taken from Arnell Fair is, in fact, has a connection with this particular car. * * * [I]f the personal items that he takes off of Mr. Fair are not . . . incriminating items, such as keys, such as a car remote, -8-

then the officer does not have a right to then take that car remote or take that key and go on some whole expedition in terms of another search. In essence, appellant argues that he retained a Fourth Amendment expectation of privacy in the keys and remote, and that, in the absence of a warrant, the detective's role with respect to them was only that of caretaker. First, appellant claims that his Fourth Amendment rights were violated when he was taken to locate Tanner's vehicle after he was arrested and given his Miranda rights. We disagree. Because the detective would be responsible for having Tanner's vehicle towed, locating that vehicle was appropriate. Viewing the record in the light most favorable to the State, Tanner voluntarily directed Detective Mahan to where his vehicle was after having been advised that he had the right to remain silent. That appellant was also taken to the location of Tanner's car was in no way a violation of appellant's rights. Appellant had, and apparently exercised, a continuing right to remain silent, but, once he was arrested, he was in Detective Mahan's custody and simply along for the ride. The second alleged violation of appellant's Fourth Amendment rights is related to Detective Mahan's utilizing the keys and remote already in his possession from the search incident to appellant's arrest to determine whether the vehicle containing marijuana in plain view was appellant's vehicle and to gain access to the vehicle. Appellant argues that Detective Mahan was only in possession of the keys and remote as part of his "care taking function" and that the keys and remote could not be utilized in an investigation unrelated to his initial arrest. The State argues that the use of the keys and -9-

remote was justified under Holland v. State , 122 Md. App. 532, 539, cert. denied , 351 Md. 662 (1998), where we stated: When the property is taken from the arrestee, the Fourth Amendment intrusion is a fait accompli. When, hours later, a crime lab technician picks up a gun from a storage locker to check it out ballistically, that is not a fresh Fourth Amendment intrusion requiring either a fresh exigency or a warrant for its justification. The danger of destruction is at an end once an arrestee's property has been seized. That is the seizure, and the only seizure, that has Fourth Amendment significance. The property may then be dusted for fingerprints, examined for bloodstains or DNA, checked for serial numbers, or otherwise processed on a more leisurely basis as an investigation unfolds. Every time that an item, already in police hands, is physically picked up and examined or reexamined, that is not a fresh Fourth Amendment intrusion requiring a fresh justification. In Holland , we concluded that the Fourth Amendment intrusion is complete when property is taken from an arrestee, and further examination and processing of that evidence does not violate Fourth Amendment protections. Id . at 540. Likewise, in Wallace v. State , 373 Md. 69, 98 (2003), the Court of Appeals held that an incarcerated individual, generally, does not have a reasonable or legitimate expectation of privacy in property legally seized and lawfully stored in police custody by law enforcement officials. Subsequent searches or seizures of that property by law enforcement officials normally do not violate that individual's Fourth Amendment protections. . . . At issue here is not a "subsequent search" of the keys and remote. Therefore, we need not decide whether Holland and Wallace would authorize the use of keys included among the inventoried belongings of an arrestee to carry out a search of a place or an automobile without probable cause to obtain a warrant. As we explain, a warrant was not necessary to -10-

search the vehicle in this case. Clearly, the focus of the investigation shifted from the original violation to the marijuana inside the vehicle when Detective Mahan observed the marijuana in plain view inside the Cadillac next to Tanner's vehicle. In State v. Cabral, 159 Md. App. 354, 372-73, (2004), we explained: A warrantless search of a vehicle is permitted if there is probable cause to believe that the vehicle contains contraband. In general, the automobile exception to the warrant requirement is premised upon the exigencies associated with the mobility of a vehicle, and the diminished expectation of privacy with regard to a vehicle. (Internal citations and quotations omitted.) Moreover, in England v. State , 274 Md. 264, 272-273 (1975), the Court of Appeals stated that "there is no absolute requirement that an occupied car be stopped on the `open highway' to invoke the `automobile exception.'" (Citing Scales v. State , 13 Md. App. 474, 481-82 (1971) (search of an unoccupied automobile on apartment house parking lot); United States v. Church , 490 F. 2d 353, 354-55 (9th Cir. 1973), cert. denied , 42 U.S.L.W. 3631 (May 13, 1974) (search of an unoccupied automobile parked on public street); United States v. Cohn , 472 F. 2d 290, 292 (9th Cir. 1973) (unoccupied automobile parked on public street)). The Cadillac was parked directly next to Tanner's vehicle. Tanner and appellant had just been arrested for smoking marijuana. Either before or after the suspected marijuana was observed in plain view, Tanner identified the Cadillac as the vehicle appellant was driving. -11-

That information was consistent with the fact that Detective Mahan had confiscated keys to a Cadillac from appellant incident to his earlier arrest. Clearly, Detective Mahan had probable cause to believe that the Cadillac was driven by appellant, and, had he not already been under arrest, to arrest him and search the Cadillac under the automobile exception to the warrant requirement. See Nair v. State , 51 Md. App. 234, 237 (1982) (A warrantless search of an automobile was proper where police were informed that the vehicle contained illegal firearms that were to be sold that day.); United States v. Neubourn , 600 F. 2d 452, 454 (4th Cir. 1979) (Upholding the warrantless search of the trunk of a vehicle loaded with stolen firearms under the automobile exception to the warrant requirement); Jarrell v. State , 36 Md. App. 371, 374 (1977) (Upholding the warrantless search of a vehicle for marijuana upon receiving information that a sale was to occur within two hours.). Detective Mahan did not have to effect an arrest or physically seize the keys and remote because they were already in his possession. Under these circumstances, Detective Mahan had the right, without a warrant, to utilize the Cadillac keys and remote already in his possession to confirm his belief that the vehicle had been driven by appellant and to gain access to the vehicle and carry out a search. II. Hearsay Question We next consider whether the circuit court erred by admitting the paycheck issued to appellant by the Mayor and City Council of Baltimore's Central Payroll Division that was found in the center console of the Cadillac. Appellant argues that the paycheck should have -12-

been excluded as hearsay. To answer the question posed, a review of Maryland hearsay law and the doctrine of implied assertions is in order. At common law, "the hearsay rule applie[d] when the probative value of the declarant's statement rests on the out-of-court declarant's sincerity and accuracy." McLain, Maryland Evidence,

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