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Benjamin Basil Fontaine v. State of Maryland, No. 504, September Term, 2000

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CRIMINAL LAW -- Defendant was arrested in Delaware for possession of marijuana and driving without a license, transported to a station house in Maryland, and searched in Maryland incident to arrest, resulting in the seizure of cocaine found on his person. Defendant's conviction for possession of cocaine with intent to distribute reversed because the Maryland court lacked territorial jurisdiction.

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 504 September Term, 2000

BENJAMIN BASIL FONTAINE

v.

STATE OF MARYLAND

Eyler, Kenney, Bloom, Theodore G. (Ret., specially assigned), JJ.

Opinion by Eyler, J.

Filed: December 1, 2000

Appellant, Benjamin Basil Fontaine, was convicted by the Circuit Court for Wicomico County, after a nonjury trial on an Agreed Statement of Facts, of possession with intent to distribute. Prior to trial, appellant moved to dismiss the

charges for lack of jurisdiction and moved to suppress cocaine found on his person. The court denied both motions.

On appeal, appellant contends that the court erred in both instances. We agree that the court lacked jurisdiction

and, thus, reverse the conviction. Factual Background We adopt the statement of facts presented by the appellant: MOTION/SUPPRESSION HEARING Argument was presented on the Appellant's Motion to Dismiss for lack of jurisdiction on November 30, 1999, and the Motion was denied (Simpson, J.). At the Suppression and Motions hearing on January 10, 2000, Detective Ronald Marzac (herein referred to as "Marzac") of the Delmar Police Department testified that on September 8, 1999 he and Patrolman Esham stopped the vehicle -- a gray Cadillac being operated by Appellant within the Town of Delmar while it was in the State of Delaware. Marzac said he was familiar with Appellant and had occasion a week or two before to check his license status in Maryland and Delaware and found that he was suspended in Maryland and had never possessed a license in any other state.

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Marzac said his attention was drawn to the Cadillac because he recognized Appellant as the driver and also because of the large air freshener hanging from the rear view mirror. Marzac activated the emergency equipment, stopped the vehicle in the State of Delaware and placed Appellant under arrest. While he followed and stopped the car, Marzac observed Appellant fidgeting while he was attempting to stick something down the rear of his pants. Marzac also said he had received information of where Appellant normally concealed his controlled dangerous substances. No offense had occurred in Maryland at the time of the arrest. While the vehicle was being inventoried, trace amounts of marijuana were found throughout the vehicle. Appellant was patted down at the scene in Delaware and transported to the Delmar Police Department which is located in Maryland. At the station Appellant was strip searched and a bag of suspected marijuana and a bag of suspected crack cocaine was recovered from his buttocks. The car was subsequently towed to the Delmar Police Station. Appellant was charged in Delaware with possession of the marijuana in the car and with driving while suspended and driving without a license. He was charged in Maryland with felonious possession of the crack cocaine and possession of the marijuana found on his person. The parties agreed that the Delmar Police Department has dual jurisdiction -- all of the members are commissioned in both Maryland and Delaware. The town lies in both states but the one police station is located in Maryland. TRIAL -2-

Trial proceeded by way of a not guilty agreed statement of facts on Count One -- possession with intent to distribute crack cocaine (the State agreeing to nol pros the other counts upon conviction of Count One). In August, 1999 Marzac had made a record check of Appellant and found that he had never possessed a license and was also suspended in Maryland. On September 8, 1999, while on routine patrol, Marzac and Esham observed Appellant driving a gray Cadillac in Delaware with an air freshener hanging from the rear view mirror. A traffic stop ensued in Delaware and Appellant was placed under arrest for driving on a suspended and revoked license. He was transported by Marzac to the Delmar Police Department in Maryland where he was searched and one bag of suspected marijuana and one bag of suspected crack cocaine was located between the cheeks of Appellant's buttocks. The crack cocaine was subsequently chemically analyzed and found to have a net weight of 12.2 grams. The stop occurred around 4:15 p.m. and a search of the vehicle revealed suspected marijuana. An inventory search of the vehicle around 5:30 p.m. after it had been towed to the Delmar Police Department in Maryland revealed suspected marijuana. Appellant was charged with driving while suspended/revoked and possession of the marijuana in the car under a Delaware warrant. He was taken before a Delaware Justice of the Peace on those charges that evening where those charges were disposed of.

Questions Presented 1. Did the trial court err in denying appellant's motion -3-

to dismiss for lack of jurisdiction? 2. Did the trial court err in denying appellant's motion to suppress the evidence? Discussion 1. Appellant first argues that the circuit court had no territorial jurisdiction over the crime for which he was convicted. Appellant explains that he was arrested in

Delaware, transported to the station in Maryland for processing, and then back to Delaware to appear before a Delaware justice of the peace. Appellant contends that (1)

the search performed at the station was not a search incident to an arrest, but rather was part of the processing of appellant as a "Delaware prisoner" and (2) while in Maryland, he had no criminal intent to possess or distribute cocaine. The Supreme Court of the United States has long recognized the authority of the police to search an arrestee incident to a lawful arrest. See United States v. Robinson,

414 U.S. 218, 224-26 (1973); see also State v. Evans, 352 Md. 496, 516, 723 A.2d 423, 432-33, cert. denied, 120 S.Ct. 310 (1999). A search incident to arrest is an established

exception to the general principle that a search of a person by a state agent without a warrant is unreasonable under the

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Fourth Amendment. 185 (1990).

See Illinois v. Rodriguez, 497 U.S. 177,

It is plain that searches and seizures that could be made on the spot at the time of arrest may be legally conducted later at the place of detention. Edwards, 415 U.S. 800, 803 (1974). See United States v. This includes both the See id.

person and the property in his immediate possession.

(holding that authorities were entitled to search arrestee's clothing after he had been placed in his cell and to keep the clothing in official custody). The Supreme Court has reasoned

that police conduct that would be impractical, unreasonable, or embarrassingly intrusive on the street may be more readily performed at the police station. 462 U.S. 640, 645 (1983). See Illinois v. Lafayette,

For example, the interests

supporting a search incident to arrest may not justify disrobing an arrestee on the street, but the practical necessities of routine jail administration may justify taking a prisoner's clothes before confining him. See id. See

generally Holland v. State, 122 Md. App. 532, 536-41, 713 A.2d 364, cert. denied, 351 Md. 662 (1998). Appellant was lawfully arrested and charged in Delaware with possession of marijuana located in his car, driving with a suspended license, and driving without a

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license.

The search was part of the processing of appellant.

We agree with the circuit court that the search performed at the station was a search incident to an arrest. Appellant next argues that Maryland did not have jurisdiction because he had no criminal intent to possess or distribute cocaine in Maryland. We agree. The crime of

possession with intent to distribute drugs is prohibited by statute. "It is unlawful for any person [t]o ... possess a

controlled dangerous substance in sufficient quantity to reasonably indicate under all circumstances an intent to ... distribute ... a controlled dangerous substance." Ann. (1996 Repl. Vol.), Art. 27,

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