Preview:

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1956 September Term, 2000 _______________________________

BRIAN LEWIS PRESTON

V.

STATE OF MARYLAND

_______________________________ Salmon, Eyler, James R., Krauser, JJ. _______________________________ Opinion by Salmon, J.

Filed: November 1, 2001

On April 12, 2000, a McDonald's fast food restaurant located on Eastern Avenue in Essex, Baltimore County, Maryland, was robbed by a lone gunman wearing a ski mask. Two days after the

robbery, appellant, Brian Preston, was arrested for the McDonald's robbery pursuant to a valid arrest warrant. The

arrest was made as appellant arrived at work and just after he had alighted from a Plymouth Neon automobile (hereinafter "the Plymouth"). Shortly after his arrest, appellant was taken to

police headquarters, and the Plymouth was towed to a "crime lab/garage" owned by Baltimore County, where it was searched. As a result of searching the passenger compartment of the Plymouth, the police found several items that incriminated appellant: 1. A twenty-two caliber Beretta handgun, later identified as the weapon used in the robbery;1 A blue knit ski mask; A bag containing deposit slips, register receipts, petty cash vouchers, monopoly games, and other items belonging to McDonald's. The dates on these items ranged between March 31 and April 11, 2000.

2. 3.

Prior to trial, appellant filed a motion to suppress the items recovered from the Plymouth. After an evidentiary hearing,

the motions judge ruled that the warrantless search of the Plymouth at the police garage was valid as a search incident to
Although it was not introduced at trial because appellant, the police also found a black CO-2 type BB gun.
1

it

did

not

incriminate

appellant's arrest.

Appellant was thereafter convicted by a jury

of the armed robbery of the McDonald's as well as two related charges: first degree assault and use of a handgun in the commission of a crime of violence.

I. 1.

QUESTIONS PRESENTED

Did the lower court err in denying appellant's motion to suppress the evidence found in the Plymouth's passenger compartment? Assuming, arguendo, that the search should have been ruled invalid, was the denial of the motion to suppress harmless beyond a reasonable doubt?

2.

We answer the first question in the affirmative, the second in the negative, and reverse.

II.

EVIDENCE PRESENTED AT THE SUPPRESSION HEARING

On the day following the robbery of the McDonald's, Detective Joseph Caskey of the Baltimore County Police Department questioned Shirlita Jackson, the McDonald's manager. During

interrogation, Ms. Jackson said that she and appellant had conspired to commit the armed robbery and that the robbery plan was originated by appellant. According to Ms. Jackson's

confession, appellant executed his plan by using a silver gun along with a black gun in robbing her (and two other McDonald's employees) on the morning of April 12, 2000. Based on the

2

information provided by Ms. Jackson, a warrant for appellant's arrest was issued. On April 14, 2000, several Baltimore County police officers were waiting for appellant to show up for work at a restaurant located in the White Marsh mall. a.m. driving the Plymouth. Appellant arrived for work at 9

He opened the door of the vehicle and

stood, but before he could close the car door he was arrested. The police merely "glance[d]" at the interior of the Plymouth but did not search it while it was on the White Marsh parking lot. Instead, the vehicle was towed to the crime Detective Caskey testified as follows:

lab/garage and searched.

Question [Prosecutor]: Why did you tow it [the Plymouth] back to the garage? Answer: We towed it back to the garage so we could search it at the headquarters as opposed to searching it in the middle of the White Marsh mall parking lot. Question: Why? Would there have been a problem if you searched it on the White Marsh mall parking lot? Answer: It is just more convenient to have it done at headquarters where we didn't draw a crowd. We were drawing people around us, and we didn't want to do that. We wanted to take our time to search this car and not spend hours on the parking lot. At the time the Plymouth was towed to the police garage, the police knew that the vehicle was owned by Brenda Marcus, who was the mother of appellant's girlfriend.

3

The only testimony produced at the suppression hearing as to when the Plymouth was searched was provided during crossexamination of Detective Caskey. After establishing that he was

not present during the search of the Plymouth, Detective Caskey was asked by defense counsel: It [the Plymouth] was probably searched at least two or three hours after the arrest, wasn't it? Answer: I can look at the property sheets. I would assume so, yes. The property sheets were not admitted into evidence at the suppression hearing. Detective Todd Ford, who was one of the three officers who searched the Plymouth, testified that a duffle bag was found on the front passenger seat of the Plymouth. Detective Ford could

not remember if the bag was opened or closed prior to the search. Inside the bag was a CD case, and inside that case the police found a twenty-two caliber Beretta pistol. Elsewhere in the bag,

the police discovered a "black CO-2 type BB gun."2 The prosecutor argued at the suppression hearing that a warrant to search the Plymouth was not necessary because the search was made incident to appellant's arrest. The prosecutor

did not rely on any other exception to the warrant requirement.

The other items found in the vehicle mentioned, supra, were not discussed by either witnesses or counsel at the suppression hearing.

2

4

During the hearing, the motions judge made it clear that he believed that, if the police could search the Plymouth at the place of arrest, the police could also search it at the police garage. For reasons discussed infra, we hold that he was wrong.

III. A.

FIRST ISSUE

Search Incident to Arrest Exception

"[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967). When a search is conducted

without a warrant, the burden rests upon the state to prove that some exception to the warrant requirement applies. A case factually similar to the one at bar is, coincidentally, one where the petitioner has the same surname as the appellant. In Preston v. United States, 376 U.S. 364 (1964),

the petitioner and three other men sat parked in a motor vehicle in a business district under suspicious circumstances. 365. The men were arrested for vagrancy. Id. Id. at

The petitioner

and his cohorts were searched at the time of their arrest but the car was not. Id. Instead the car was driven by a police officer

to the station house and from there it was towed to a garage where it was searched "[s]oon after the men had been booked at

5

the station. . . ."

Id.

In the car, the police found, among

other things, two loaded revolvers, women's stockings (one with mouth and eye holes) and an "illegally manufactured license plate equipped to be snapped over another plate. . . ." Id. at 365-66. The issue in Preston was whether the search of the vehicle was lawful. Id. at 366-67. In Preston, as here, it was argued Id. at 367.

that the search was "incidental to a lawful arrest."

The Supreme Court held that it was not a lawful search and explained: Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime. This right to search and seize without a search warrant extends to things under the accused's immediate control, and, to an extent depending on the circumstances of the case, to the place where he is arrested. The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime

Download Preston v. State.pdf

Maryland Law