TAYLOR v. STATE (NO. 75, SEPT TERM. 2015)


        Under Arizona v. Gant, 556 U.S. 332 (2009), when a police officer validly arrests a
motorist for driving under the influence of alcohol, in the absence of facts indicating
otherwise, the officer, based on his or her knowledge and experience, may reasonably
conclude that open containers or other evidence bearing on the DUI offense may be present
in the passenger compartment of the vehicle and conduct a search for such evidence, even
though the defendant has been safely secured and has no access to the vehicle.
Circuit Court for                  IN THE COURT OF APPEALS
Dorchester County                      OF MARYLAND
Case No. K13-014979
Argued 4/4/16                                No. 75

                                     September Term, 2015


                                    EFRAIN TAYLOR

                                            vs.

                                STATE OF MARYLAND


                                Barbera, C.J.
                                *Battaglia
                                Greene
                                Adkins
                                McDonald
                                Watts
                                Wilner, Alan M. (Retired, Specially
                                Assigned)

                                              JJ.



                                     Opinion by Wilner, J.



                                       Filed: May 23, 2016

                      *Battaglia, J., now retired, participated in the
                        hearing and conference of this case while an
                       active member of this Court; after being recalled
                       pursuant to the Constitution, Article IV, Section
                       3A, she also participated in the decision and
                       adoption of this opinion.
       Petitioner was convicted in the Circuit Court for Dorchester County of possession

with intent to distribute cocaine and driving under the influence of alcohol. As a repeat

drug offender, he was sentenced to a significant term in prison. His sole complaint in this

appeal is that the search of his car following a traffic stop, which led to the discovery of

the cocaine, was Constitutionally deficient. The trial court denied his motion to suppress

the drugs and the Court of Special Appeals affirmed the ensuing judgment of conviction.

       In reviewing a trial court’s ruling on a motion to suppress, we defer to that court’s

findings of fact unless we determine them to be clearly erroneous, and, in making that

determination, we view the evidence in a light most favorable to the party who prevailed

on that issue, in this case the State. We review the trial court’s conclusions of law,

however, and its application of the law to the facts, without deference. Varriale v. State,

444 Md. 400, 410, 119 A.3d 824, 830 (2015), citing Hailes v. State, 442 Md. 488, 499,

113 A.3d 608, 614 (2015); also Holt v. State, 435 Md. 443, 457, 78 A.3d 415, 423

(2013). There were no material disputes regarding the relevant facts in this case. The

issue is purely one of law – whether the officer’s search of the car as an incident to

appellant’s arrest was permissible under the Supreme Court’s holding in Arizona v. Gant,

556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed.2d 485 (2009) (hereafter Gant).

       Officer Chad Mothersell, of the Cambridge Police Department, stopped petitioner

at about 1:00 in the morning after observing him speeding and failing to stop at a stop

sign. Although at trial, petitioner claimed he had not been speeding, the validity of the

stop is not at issue in this appeal. Officer Mothersell – the only witness at the
suppression hearing – said that, when he approached the passenger side of the vehicle

following the stop, he detected a minor odor of alcohol coming from petitioner’s breath

and person, even though petitioner was several feet away, in the driver’s seat. Mothersell

observed that petitioner’s speech was slurred and hard to understand and that his eyes

were bloodshot and glassy. When Mothersell asked for appellant’s registration card, he

was handed an insurance card. Petitioner said that he had been at the Point Break bar in

Cambridge.

       Mothersell had petitioner exit the car so he could perform standard field sobriety

tests, which appellant did not complete successfully. At that point, he was placed under

arrest for driving under the influence of alcohol. Just then, a backup officer arrived.

Mothersell placed petitioner in the rear seat of his squad car to advise him of his rights

regarding whether to take a breath test and, while that was happening, the backup officer

searched appellant’s car and found the cocaine inside the front seat center armrest.

       Mothersell said that the sole purpose for the search was to locate any “other

alcohol, open containers, anything pertaining to the DUI arrest.” When asked, on cross

examination, whether he had any reason to believe that there might be open containers in

the car, he said that there was a “good possibility” – that he had “several DUI arrests

where there’s plenty of open containers left in the vehicle.” On this evidence, defense

counsel argued that, under Gant, the search was unlawful because there was no

independent probable cause for such a search, which, he claimed, Gant requires. The

court disagreed and, as noted, denied the motion to suppress.


                                              2
       The starting point for analyzing the validity of a warrantless search is the

underlying precept that “searches conducted outside the judicial process, without prior

approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment

– subject only to a few specifically established and well-delineated exceptions.” Gant,

supra, 556 U.S. at 338, 129 S. Ct. at 1716, 173 L. Ed.2d at 493, quoting from Katz v.

United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed.2d 576, 585 (1967). One

of those exceptions is a search incident to a valid arrest, which “derives from interests in

officer safety and evidence preservation that are typically implicated in arrest situations.”

Gant, 556 U.S. at 338, 129 S. Ct. at 1716, 173 L. Ed.2d at 493.

       Gant was intended to clarify the scope of that exception in the context of a motor

vehicle search. Mr. Gant was arrested for driving on a suspended license. After he had

been handcuffed and locked in a police car, officers searched Gant’s car and found

cocaine in the pocket of a jacket on the back seat. The issue was whether such a search,

under those circumstances, where it was virtually impossible for Gant to have accessed

his car to retrieve either weapons or evidence, could be justified under the holdings in

Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed.2d 685 (1969) and New

York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed.2d 768 (1981), and the Court

held that the search in that case could not be justified.

       In Chimel, the Court limited the scope of a warrantless search incident to an arrest

to the arrestee’s person and the area within his or her “immediate control” – the area

“from within which he [or she] might gain possession of a weapon or destructible


                                               3
evidence.” 395 U.S. at 763, 89 S. Ct. at 2034, 23 L. Ed.2d at 694.     Belton exposed some

ambiguity in what the limitation of “immediate control” meant in the context of vehicle

passenger compartment searches. In Belton, an officer stopped a vehicle containing four

occupants. While asking for the operator’s driver’s license, he smelled burnt marijuana

and observed an envelope in the vehicle marked “Supergold,” a name he associated with

marijuana. Concluding that he had probable cause to believe that the occupants had

committed a drug offense, he ordered them out of the car, placed them under arrest,

patted them down, and separated them from each other, but did not handcuff them. He

then searched the car and found cocaine in the pocket of a jacket on the back seat.

       The New York Court of Appeals held that, once the occupants were arrested, the

car and its contents were safely in the exclusive control of the police and that the search

therefore was unconstitutional. The Supreme Court granted certiorari because it found

that lower courts throughout the country had been unable to agree on a workable

definition of “the area within the immediate control of the arrestee” when that area might

include the interior of an automobile. The Belton Court settled the issue – or thought that

it had – by holding that, when an officer lawfully arrests the occupant of an automobile,

the officer, as a contemporaneous incident of that arrest, may search the passenger

compartment of the car and any containers therein. That conclusion was based on the

assumption that “articles inside the relatively narrow compass of the passenger

compartment of an automobile are in fact generally, even if not inevitably, within the area




                                              4
into which an arrestee might reach.” Belton, 453 U.S. at 460, 101 S. Ct. at 2864, 69 L.

Ed.2d at 774-75.

       Belton did not solve the problem. As the Court noted in Gant, Belton had “been

widely understood to allow a vehicle search incident to the arrest of a recent occupant

even if there is no possibility the arrestee could gain access to the vehicle at the time of

the search.” The Gant Court rejected that view which, it said, would “untether the rule

from the justifications underlying the Chimel exception,” and held instead that the

“Chimel rationale authorizes police to search a vehicle incident to a recent occupant’s

arrest only when the arrestee is unsecured and within reaching distance of the passenger

compartment at the time of the search.” Gant, at 343, 129 S. Ct. at 1719, 173 L. Ed.2d at

496.

       Had the Court stopped there, we would be obliged to reverse the suppression order

of the trial court in this case, as petitioner urges us to do. But the Court did not stop

there. In the very next sentence, it added that, although it does not follow from Chimel,

“circumstances unique to the vehicle context justify a search incident to a lawful arrest

when it is ‘reasonable to believe evidence relevant to the crime of arrest might be

found in the vehicle.’” Id, quoting from Justice Scalia’s concurring Opinion in Thornton

v. United States, 541 U.S. 615, 632, 124 S. Ct. 2127, 2137, 158 L. Ed.2d 905, 920 (2004)

(Emphasis added). That is the holding relevant to this case. We are not concerned with

the Chimel “wingspan” but with whether Officer Mothersell reasonably could have




                                               5
believed that evidence relevant to the crime of driving under the influence of alcohol –

the crime for which petitioner was arrested – might be found in the vehicle.

       The Gant Court noted that, in many cases when a recent occupant is arrested for a

traffic violation, there will be no reasonable basis to believe that the vehicle contains

further relevant evidence of that offense, but that in other cases, including Belton and

Thornton, “the offense of arrest will supply a basis for searching the passenger

compartment of an arrestee’s vehicle and any containers therein.” Gant, at 344, 129 S.

Ct. at 1719, 173 L. Ed.2d at 496 (Emphasis added). Gant was arrested for driving on a

suspended license, an offense for which, on the record in that case, the police could not

reasonably expect to find any further evidence in the passenger compartment; hence,

there was no basis for the search. Belton and Thornton, on the other hand, were arrested

for drug violations, for which there was a greater expectation of finding further evidence

in the vehicle.

       The issue here, of course, is whether an arrest for driving under the influence of

alcohol, under the circumstances of this case, can reasonably lead to an expectation that

further evidence of that offense may be found in the passenger compartment. Petitioner

argues that what the Supreme Court must have meant when it defined the standard for

conducting a vehicle search as an incident to a lawful arrest as whether it is “reasonable

to believe evidence of the crime of arrest might be found in the vehicle” is that the officer

must have a “reasonable articulable suspicion” in that regard – the same level of

suspicion that would justify a temporary investigative detention or a frisk for weapons.


                                              6
       Having equated “reasonable to believe” with reasonable articulable suspicion,

petitioner contends that reasonable articulable suspicion cannot be based on or tied to the

nature of the crime for which the defendant was arrested because, if that were so, it would

allow the police carte blanche authority to search vehicles without any reasonable

articulable suspicion for one category of crimes but not for another. He accuses the State

of positing a per se rule -- a “dichotomy” between offenses that may yield physical

evidence and offenses that may not, which, he contends, “relies on a hyper-literal reading

of Gant that ignores the abhorrence of suspicionless searches for evidence and the

rejection of general searches incident to arrest.”

       Petitioner’s argument raises a fair question of what, exactly, the Gant Court meant

in holding that the police may search the vehicle when it is “reasonable to believe” that

evidence of the crime for which the defendant was arrested may be discovered and

coupling that with the observation that some offenses “will supply a basis for searching

the passenger compartment” while others will not. Did the Court intend “reasonable to

believe” to be the equivalent of “reasonable articulable suspicion,” and, if it did, why did

it not simply use the latter term, which it had created and was already well-known to the

judicial and law enforcement community? Whether it did or did not intend such

equivalence, was its immediately ensuing language meant to suggest that certain crimes

will, of themselves, supply a right to conduct the search, without any independent basis

for a reasonable suspicion that further evidence of the crime may be found in the vehicle?




                                              7
       In State v. Ewertz, 305 P.3d 23, 26-27 (Kan. App. 2013), the Kansas court noted

that courts had, indeed, taken two different approaches on the issue – one interpreting

“reasonable to believe” as creating “an almost categorical link between the nature of the

crime of arrest and the right to search,” and the other interpreting that language as “akin

to reasonable suspicion,” citing People v. Nattoli, 199 Cal. App.4th 531, 553 (2011) as

exemplifying the first approach and United States v. Taylor, 49 A.3d 818, 822-24 (D.C.

2012) and People v. Chamberlain, 229 P.3d 1054, 1057 (Colo. 2010) as supporting the

second. Ultimately, the Supreme Court may need to clarify what it meant and, given the

vast number of traffic stops that occur every day throughout the country, we hope that it

will do so.

       We do know that other courts have sustained passenger compartment searches,

under Gant, following an arrest for driving under the influence or driving while

intoxicated, on the premise that there is reason to believe that other evidence of that

offense may be found in the vehicle. See State v. Cantrell, 233 P.3d 178 (Idaho App.

2010); State v. Ewertz, supra, 305 P.3d 23; Cain v. State. 373 S.W.3d 392 (Ark. App.

2010); United States v. Washington, 670 F.3d 1321 (D.C. Cir. 2012); and United States v.

Oliva, 2009 WL 1918458 (U.S.Dist. Ct. S.D. Texas (2009) (unreported).

       We agree with that result in this case, but not on the basis of any per se right to

search founded solely on the nature of the offense. We conclude that the “reasonable to

believe” standard is the equivalent of reasonable articulable suspicion because we cannot

discern any logical difference between the two. If a police officer has a reasonable


                                              8
suspicion that he or she can articulate that something is so, then perforce it is reasonable

for the officer to believe that it may be so and vice versa. But that suspicion, to be

reasonable, must have some basis in fact.

       In this case there was, and, we suspect, in most cases of an arrest for driving under

the influence, there is likely to be, a basis in fact – the arresting officer’s own prior

experiences or his or her knowledge of the experience of fellow officers, which can be

articulated, of finding open containers or other evidence related to the offense inside the

passenger compartment. It is a solid part of “reasonable articulable suspicion” law that

reasonable suspicion may be derived from an officer’s own experience or his or her

knowledge of the experience of other officers. See Holt v. State, 435 Md. 443, 461, 78

A.3d 415, 425 (2013), noting the statement in United States v. Cortez, 449 U.S. 411, 418,

101 S. Ct. 690, 695, 66 L.Ed.2d 621, 629 (1981) that evidence “must be seen and

weighed not in terms of library analysis by scholars, but as understood by those versed in

the field of law enforcement” and concluding that the court must “assess the evidence

through the prism of an experienced law enforcement officer, and give due deference to

the training and experience of [the officer].”

       On this basis, we shall affirm the judgment of the Court of Special Appeals.1

                             JUDGMENT OF COURT OF SPECIAL APPEALS
                             AFFIRMED; PETITIONER TO PAY THE COSTS.



1
 The Court of Special Appeals, though affirming the judgment of conviction entered in
the Circuit Court, remanded the case for resentencing. That aspect of the intermediate
appellate court’s judgment is not before us.
                                                 9
