Liichow v. State

Murphy, C. J.,

concurring in part and dissenting in part:

I agree with the Court that Liichow had a constitutionally protected expectation of privacy in the plastic bag under the facts of this case, and that under Arkansas v. Sanders, 442 U.S. 753 , 99 S. Ct. 2586 , 61 L. Ed. 2d 235 (1979), the plastic *516 bag, while it was lawfully seized, could not be searched without a warrant. This is so under Sanders because Liichow was using the plastic bag as a common repository for his personal effects, akin to a personal luggage carrier, such as a suitcase or a footlocker, which is invariably associated with an expectation of privacy. See United States v. Chadwick, 433 U.S. 1 , 97 S. Ct. 2476 , 53 L. Ed. 2d 538 (1977). Consequently, for the reasons so well articulated by the Court, the illegal drugs seized from the nontransparent brown bags found within the plastic bag were improperly admitted in evidence at the trial. Reversal of eight of the nine counts of possessing various controlled dangerous substances is therefore clearly correct.

The fifty white dime-sized tablets observed by Trooper Twigg before he seized the bag were not, however, taken as a consequence of an unlawful search. As to them I would affirm the conviction of that count of the criminal information charging Liichow with their unlawful possession.

The record discloses that after Liichow had removed his personal belongings from the trailer and packed them into Young’s car, he asked Trooper Twigg whether he could retrieve other personal items which he had "hidden” behind the trailer. After Twigg had given his assent, Liichow refused the trooper’s request that he be permitted to accompany Liichow behind the trailer. When Liichow emerged from behind the trailer, he was carrying the plastic bag in a guarded fashion, to prevent Twigg from seeing into or through it. When the bag fell from Liichow’s arm, and its contents were partially exposed, Twigg was standing next to the bag and he said that he observed approximately fifty white dime-sized tablets in a small clear "baggie” at the bottom of the plastic bag. Based on his police training and experience of some ten years, Twigg believed the tablets to be a controlled dangerous substance. Before he could seize the plastic bag, Liichow jumped into Young’s car and attempted to put the bag under the seat. Without hesitation, reflecting Twigg’s knowledge that he had observed controlled dangerous substances, the trooper reached inside the car and seized the plastic bag.

*517 The trial judge, believing Twigg’s testimony, found that Twigg had probable cause to seize the plastic bag and to search it. The court said that when the plastic bag was exposed to Twigg’s view, the trooper "could see some small white pills” and that "[f]rom prior training, he could observe that they were about the size of CDS [controlled dangerous substance] or other drug.” In concluding that the seizure of the plastic bag and its subsequent search was lawful, the trial judge considered "the totality of evidence with the pistol being fired, the shot gun in the trailer and the missing knife, coupled with the fact that the Defendant told the Officer he had a package secreted behind the trailer, and the fact that the Trooper, himself, observed a package with white pills in it.” 1

I think there was legally sufficient evidence before the trial judge to support his determination that Trooper Twigg had probable cause to believe that the dime-sized white pills which he observed in the clear "baggie” inside the plastic bag were controlled dangerous substances. Considering the events necessitating the trooper’s presence at the scene, Liichow’s furtive conduct in going behind the trailer to retrieve the personal belongings which he had there "hidden,” and Liichow’s effort to conceal the contents of the plastic bag from the officer’s view, Twigg’s suspicion that a weapon or some kind of contraband was contained in the plastic bag was plainly justified. After Liichow dropped the bag and the white pills inside the plastic bag became clearly visible to Twigg, his police training and experience in narcotics identification and investigation led him to conclude that the pills were controlled dangerous substances. While the trooper’s experience with narcotics was not extensive, and he was unable to name the precise controlled dangerous substance contained in the tablets, I think the basis for his conclusion was adequate to furnish the requisite measure of probable cause.

The evidence showed that Twigg had been previously *518 involved in five narcotics cases and had received classroom training in identifying controlled dangerous substances. He testified that the white dime-sized tablets looked similar to other pills that he had seen in books and pamphlets used in police training courses to familiarize officers with various illegal drugs.

The cases hold that whether a police officer possesses probable cause to seize contraband drugs is measured by the extent of his training and experience in narcotics investigation or identification. See, e.g., Johnson v. United States, 333 U.S. 10, 13 , 68 S. Ct. 367 , 92 L. Ed. 436 (1948) (probable cause may be based on distinctive odor where officer is "qualified to know the odor”); United States v. McCormick, 468 F.2d 68 (10th Cir. 1972), cert. denied, 410 U.S. 927 (1973); United States v. Wheeler, 459 F.2d 1228, 1229 (D.C. Cir. 1972); Schraff v. State, 544 P.2d 834, 847 (Alaska 1975); Wimberly v. Superior Court of San Bernardino Cty., 16 Cal. 3d 557 , 547 P.2d 417 , 128 Cal. Rptr. 641 (1976) (en banc); State v. Jackson, 263 La. 849 , 269 So. 2d 465, 468 (1972); Ford v. State, 37 Md. App. 373 , 377 A.2d 577 (1977); Peterson, Deal & Hunt v. State, 15 Md. App. 478, 486 , 292 A.2d 714 , cert. denied, 266 Md. 735 (1972). See also Spriggs v. State, 226 Md. 50 , 171 A.2d 715 (1960) (expertise in investigating lottery cases relevant to officer’s ability to interpret lottery slips); Le Faivre v. State, 208 Md. 52 , 116 A.2d 368 (1954) (expertise in bookmaking operations relevant to officer’s ability to determine whether bookmaking was taking place). See generally 1 W. LaFave, Search and Seizure, A Treatise on the Fourth Amendment § 3.2 (1978).

The trial judge, assessing the substance and credibility of Twigg’s testimony, believed what he said and that it mounted up to a showing of probable cause, conclusions which we should accept, fully supported as they are by the record.

In the circumstances, therefore, the fifty white dime-sized tablets were not seized as a consequence of an unlawful search. They were observed inside the plastic bag by Twigg prior to his seizure of the bag from Young’s car and they *519 were properly admitted in evidence under the "plain view” exception to the warrant requirement. That doctrine, when applicable, permits a seizure of evidence in plain view without a warrant. Arkansas v. Sanders, 442 U.S. 753 (n. 13), 99 S. Ct. 2586 , 61 L. Ed. 2d 235 (1979); Coolidge v. New Hampshire, 403 U.S. 443 , 91 S. Ct. 2022 , 29 L. Ed. 2d 564 (1971). As the Court stated in Harris v. United States, 390 U.S. 234, 236 , 88 S. Ct. 992 , 19 L. Ed. 2d 1067 (1968), "objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” The plain view doctrine, as articulated in Coolidge , requires the concurrence of four elements: (1) the police have a prior justification for the intrusion; (2) they find the evidence in plain view; (3) they find it inadvertently; and (4) it is immediately apparent to the police that they have evidence before them. See State v. Wilson, 279 Md. 189, 195 , 367 A.2d 1223 (1977). The fourth element, we said in Wilson, id. at 195 , requires only that the police have probable cause to believe the evidence is incriminating before they seize it.

Since Twigg was lawfully on the premises in the course of his police duties, and was not searching for evidence when he observed the white pills in plain view in the plastic bag, the first element — a previously justified intrusion — is plainly satisfied. The remaining elements are also satisfied — the white pills were in plain view, their observation was inadvertent, and there was probable cause to believe that the pills were controlled dangerous substances. The admission in evidence of the white dime-sized tablets was therefore entirely proper.

Notwithstanding our holding in Wilson , the majority somehow concludes that the fourth element of the Coolidge plain view formulation requires a greater measure of probable cause than that traditionally required in fourth amendment cases. This is readily evident because the majority opinion assumes from the outset that Twigg had probable cause to seize the plastic bag under the automobile exception.

*520 Involved in Wilson was whether a police officer, in executing a search warrant for narcotics, had independent probable cause to believe that certain stereo and recording equipment which he observed was stolen. The officer recorded the serial numbers of the equipment, and it was later ascertained that the equipment had been stolen. We rejected the argument that the seizure of the serial numbers was lawful under the plain view exception to the warrant requirement. We said that the fourth element of Coolidge had not been satisfied because at the time the officer copied the serial numbers, it was not "immediately apparent” to him that he had "evidence” before him. With Judge Levine speaking for the Court, we outlined the breadth of this element of the plain view doctrine as follows:

"[I]t was not 'immediately apparent to the police that they [had] evidence before them.’ This element, in essence, amounts to a requirement that police have probable cause to believe the evidence is incriminating before they seize it. As the court said in United States v. Gray, supra, 484 F.2d at 356, '[I]t must be "immediately apparent” to the police that the object is in fact incriminating or the seizure of the object would be without probable cause and would turn the search into a general or exploratory one.’Accord, United States v. Clark, supra, 531 F.2d at 932; United States v. Wilson, supra, 524 F.2d at 598-99; United States v. Truitt, 521 F.2d 1174, 1176 (6th Cir. 1975); see United States v. Golay, 502 F.2d 182, 184-86 (8th Cir. 1974). Stated another way, to be subject to seizure, the object must be one for which the police could have obtained a warrant because they had probable cause. Coolidge v. New Hampshire, supra, 403 U.S. at 467-68 .

"In the context of another exception to the warrant requirement, the 'hot pursuit’ doctrine, the Supreme Court has indicated what information a police officer must possess before he can be said to have probable cause to seize evidence:

'... There must, of course, be a nexus — *521 automatically provided in the case of fruits, instrumentalities or contraband — between the item to be seized and criminal behavior. Thus in the case of "mere evidence,” probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction.’ Warden v. Hayden, 387 U.S. 294, 307 , 87 S. Ct. 1642 , 18 L. Ed. 2d 782 (1967) (emphasis added).

This standard has also been used to determine whether probable cause existed to seize articles in plain view. See, e.g., United States v. Golay, supra, 502 F.2d at 185 ; United States v. Maude, 481 F.2d 1062, 1071-72, n. 73 (D.C. Cir. 1973). See also United States v. Sedillo, 496 F.2d 151, 152-53 (9th Cir.) (Hufstedler, J., dissenting), cert. denied, 419 U.S. 947 (1974).

"In Hayden , of course, the Court held that mere evidence, as well as fruits, instrumentalities, and contraband, may be seized under certain circumstances. Under the Hayden formulation, so long as police have probable cause to believe that what they see is contraband, or the fruit or instrumentality of some unspecified criminal activity, they may seize the object. See, e.g., United States v. Golay, supra, 502 F.2d at 184-86 (fruits and instrumentalities); United States v. Canestri, 518 F.2d 269, 274-75 (2d Cir. 1975) (contraband); United States v. Lopez-Ortiz, 492 F.2d 109, 111 (5th Cir. 1974) (contraband). Where, however, they possess probable cause to believe that the object is mere evidence, officers may seize it as an aid in a particular apprehension or conviction. See, e.g., Mapp v. Warden, N.Y. State Corr. Inst., Etc., 531 F.2d 1167 , 1172 (2d Cir. 1976); United States v. Jones, 518 F.2d 384, 390-92 (7th Cir.) (Swygert, J., dissenting), cert. denied, 423 U.S. 997 (1975); United States v. Damitz, 495 F.2d 50, 56 (9th Cir. 1974). These standards furnish guidelines to deter *522 mine the ultimate issue, whether an officer of reasonable caution would be warranted in believing that an offense is being or has been committed and that the object is evidence incriminating the accused. United States v. Truitt, supra, 521 F.2d at 1177 .” 279 Md. at 195-97 (emphasis supplied).

The majority relies upon State v. Elkins, 245 Or. 279 , 422 P.2d 250 (1966), a case in which application of the plain view doctrine was rejected. On the facts of that case, however, the officer was acting on mere suspicion, rather than upon probable cause. That mere suspicion is not the equal of probable cause is everywhere acknowledged. There was a total absence in Elkins , unlike the present case, of facts from which to credit the officer’s testimony that he was familiar with controlled dangerous substances and their appearance.

Finally, the majority finds it "doubtful” that the State may rely on the "plain view” doctrine because that issue was not encompassed by the questions presented in Liichow’s certiorari petition, and the State filed no cross-petition for a writ of certiorari. Maryland Rule 813 a provides:

"In cases where a decision has been rendered by the Court of Special Appeals or by a circuit court on appeal from the District Court, this Court will ordinarily consider only the issues which have been raised in the petition and any cross petition for certiorari and which have been preserved for appellate review, unless otherwise provided by the order granting the writ of certiorari.”

A review of the third question presented by Liichow in his petition for certiorari, together with the State’s answer thereto, discloses that the plain view exception to the warrant requirement, implicated in Arkansas v. Sanders, supra, was an issue encompassed by our grant of certiorari, and thus was properly invoked by the State in this case.

Judges Smith and Rodowsky have authorized me to state that they join in this opinion.

. In addition to the knife, which Liichow said he had in his possession to defend himself against his assailant, he also had packed a shotgun into Young’s car.