Conboy v. State , 155 Md. App. 353 ( 2004 )

Dissenting Opinion by

SALMON, J.

The majority’s conclusion concerning the legality of the seizure of the key from Conboy’s rear pocket was based on an exception to the warrant requirement never mentioned by either party at any stage of this case. In fact, the State in its brief even conceded that “this case involves the proper application of the ‘plain feel doctrine,’ discussed most notably by the United States Supreme Court in Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).”

The majority holds that the search was justified as “incident to” a valid arrest. In my view, that exception to the warrant requirement was justifiably ignored by the State because prior Maryland precedent demonstrates its inapplicability.

I.

Facts Known Prior to Appellant’s Arrival at the Accident Scene in a Cab ⁷

On May 28, 2002, at 6:02 p.m., Trooper David Grinnan responded to the scene of a single-vehicle accident at Route 50 and Silver Point Lane in West Ocean City, Maryland. The vehicle involved in the accident was a 1978 Ford van, which was facing eastbound on the westbound side of the road and was extensively damaged, with its “contents shaken up extensively.” Inside the van, Trooper Grinnan saw stereo equipment, construction tools, and an extension cord. The trooper also observed “alcohol containers in the vehicle, some carrying alcohol, and the alcohol had spilled leaving a strong odor of alcohol.” As far as the record reveals, he observed nothing else concerning alcohol containers.

Trooper Grinnan discovered that the tag for the 1978 Ford van belonged to a 1985 Chevrolet, which was registered to a “Mr. Wolf,”⁸ who lived nearby.

Trooper Grinnan went to Wolfs home to question him about the tags. Wolf told Trooper Grinnan that the license plates to the 1985 Chevrolet had been hidden under a sofa seat at his brother’s house; he also said that David Conboy had been staying at his brother’s house. In the trooper’s words, Wolf “indicated that Mr. Conboy had gone under the sofa, to his belief, and removed the tag and placed it on the van.” So far as is reflected in the record, Wolf did not say when David Conboy placed the tag on the vehicle, nor did he provide a description of Conboy.

Trooper Grinnan’s trip to Wolfs house and back to the accident scene took “30 to 40” minutes.⁹ He returned to the accident scene at “6:40-6:45 [p.m.],” whereupon he discovered that construction tools, stereo equipment, and an extension cord that he had seen thirty or forty minutes previously were missing. This led Trooper Grinnan to believe that “whoever had wrecked the van” had retrieved some of the property and was likely to still be in the vicinity.

The trooper did not testify that from the information he obtained from Wolf he believed that there was a “reasonable possibility” that a “David Conboy was more than likely the driver of the van at the time of the accident.” Cf. op. at 368, 843 A.2d at 225. Moreover, as far as the record shows, he possessed no facts that he could have utilized to arrive at the latter conclusion. After all, Wolf simply said that, to his belief, David Conboy put the tag on the van.

Insofar as it concerns Trooper Grinnan’s knowledge regarding the relationship between alcohol and the accident, the only thing the trooper knew prior to appellant’s arrival was that the van had been transporting alcohol. No “open containers” of alcohol were observed in the van except insofar as broken containers can be considered to be “open.”

II.

Facts Learned by Trooper Grinnan fi-orn the Time Appellant Arrived at the Scene to the Conclusion of the Search

The appellant arrived near the accident scene as the front-seat passenger in a cab. Although the taxi driver looked in the direction of the -wrecked van and at Trooper Grinnan, appellant looked in the opposite direction, which in the trooper’s opinion was both unusual and suspicious, because “most people are nosy.” The trooper reasoned: (1) valuable construction equipment like that in the wrecked van was unlikely to be abandoned by its possessor; (2) it would take “more than one trip” to retrieve all the construction equipment; (3) whoever had driven the van was likely to still be “in the area”; (4) taking a cab would be a good way to transport the construction equipment; (5) therefore, the incurious passenger in the cab might well be the driver of the wrecked van. That reasoning led Trooper Grinnan to signal the cab driver to pull the taxicab to the side of the road so that he could investigate further.

When he approached the passenger side of the cab, the officer said “Mr. Conboy.” The passenger replied, “I’m not David Conboy.” The passenger then said his name was “Mitch Unson.” Upon further questioning, he gave his name as “George Mitchell Unson.” In fact, the passenger’s real name was David Nolan Conboy, but this was not discovered immediately.¹⁰

Trooper Grinnan then asked appellant questions concerning whether he had been driving the van, where he hailed the cab, his purpose for being in the area, and whether he knew anything about the accident. The record does not reveal appellant’s responses to those questions.

During this period of questioning, Trooper Grinnan noticed that appellant appeared intoxicated and smelled strongly of alcohol. Also, the trooper observed a 270-caliber deer rifle and a bottle of Popov vodka on the backseat of the taxicab. Appellant said that those items belonged to him.

Trooper Grinnan told appellant to step from the cab. After appellant complied, the trooper asked him if he had any other weapons in his possession. Conboy responded in the negative. Trooper Grinnan then performed a pat-down of appellant’s exterior clothing to make sure he did not have any weapons associated with deer hunting, such as a buck knife or similar weapons. He found no weapons but did feel a key “of some sort” in appellant’s rear pants pocket. He extracted the key and saw that it “belonged to a Ford motor vehicle.”

The trooper explained why he took the key out of appellant’s pocket by saying: “Based on the fact that the collision had occurred and I had a vehicle that was unattended in the ditch, 1 retrieved the key from his pocket.” From that answer, coupled with what he did immediately thereafter, the only logical inference that can be drawn is that Trooper Grinnan extracted the key so that he could find out whether his suspicion (that the incurious cab passenger was the driver of the wrecked van) was accurate.

III.

Testimony at Suppression Hearing as to What Happened After the Retrieval of the Key

Trooper Grinnan walked over to the wrecked van, tried the key in the ignition, and found that the key fit. He then walked back to where appellant was sitting and said, “It’s funny, the key fits.” Appellant then confessed that he had been driving the van and had fled the accident scene because he was drunk. Appellant was then arrested for “leaving the scene of a property damage accident.” As the majority correctly notes, “There is no provision of the Maryland Code that authorizes an officer to arrest a driver for leaving the scene of [an] accident where the property damage caused by the accident is confined to the driver’s vehicle.” (Op. at 367, 843 A.2d 224.) Moreover, as far as I can determine, it is neither a crime nor a traffic violation to leave the scene of a one-car accident of this type.¹¹

Trooper Grinnan did not learn the identity of the owner of the wrecked vehicle until several days after appellant’s arrest.

At the suppression hearing, neither counsel, the motions judge, nor Trooper Grinnan even mentioned the fact that appellant faced an alcohol-related charge. The closest anyone came to the subject was when appellant’s counsel said that appellant faced “traffic charges.”

IV.

Probable Cause to Arrest

“Probable cause, we have frequently stated, is a nontechnical conception of a reasonable ground for belief of guilt. A finding of probable cause requires less evidence than is necessary to sustain a conviction, but more evidence than would merely arouse suspicion. Our determination of whether probable cause exists requires a nontechnical, common sense evaluation of the totality of the circumstances in a given situation in light of the facts found to be credible by the trial judge. Probable cause exists where the facts and circumstances taken as a whole would lead a reasonably cautious person to believe that a felony had been or is being committed by the person arrested. Therefore, to justify a warrantless arrest the police must point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warranted the intrusion. To determine whether an officer had probable cause in a specific case, here probable cause to search, “the reviewing court 'necessarily must relate the information known to the officer to the elements of the offense that the officer believed was being or had been committed.” DiPino v. Davis, 354 Md. 18, 32, 729 A.2d 354, 361 (1999).

State v. Wallace, 372 Md. 137, 148-50, 812 A.2d 291 (2002), cert. denied, — U.S.-, 124 S.Ct. 1036, 157 L.Ed.2d 951 (2004) (emphasis added) (some citations omitted).

The rule that, in considering whether the “search incident” exception is applicable, the court should direct its probable cause focus upon “the information known to the officers ... [regarding] the elements of the offense that the officer believed was being or had been committed” is here important. The majority ignores the issue of what crime Trooper Grinnan actually believed had been committed prior to the search and focuses, instead, on what offense Trooper Grinnan might have believed had been committed. See op. at 367-68, 843 A.2d at 225. In my view, this focus is misdirected.

Trooper Grinnan, the sole witness at the suppression hearing, gave no hint during his testimony that at any time prior to appellant’s confession he believed that appellant had driven the van while under the influence of alcohol. The evidence showed that prior to the search, Trooper Grinnan suspected that appellant might have been the driver of the wrecked van and that, if he was the driver, he had left the scene of a property-damage accident, which he thought was a crime. Self-evidently, a search incident to an arrest for behavior that is not a crime is invalid.

Even if the majority is correct when it focuses upon the issue of whether there was probable cause to arrest appellant (prior to the search) for driving under the influence of alcohol, probable cause for an arrest as to that charge did not exist.

The majority’s discussion as to why it concludes otherwise is set forth at Pages 367-69, 843 A.2d at 224-25 of the opinion. Two central “facts” advanced in support of the conclusion that Trooper Grinnan had probable cause to believe that appellant had wrecked the van are: (1) Trooper Grinnan believed from information he received from Wolf that there was a “reasonable possibility” that a David Conboy was more than likely the driver of the van at the time of the accident, op. at 368, 843 A.2d at 225, and (2) appellant’s statement that he was not David Conboy “unwittingly confirmed the trooper’s suspicions” that he was David Conboy. Id. Trooper Grinnan never said that his conversation with Wolf led him to believe that, more than likely, David Conboy. drove the van at the time of the accident. Because the record is so sparse as to what he was told by Wolf, we have no way of knowing whether he, in fact, held that belief. For all we know, Trooper Grinnan’s question may have been a “shot in the dark.” Moreover, Trooper Grinnan never said that appellant’s “I’m not David Conboy” response confirmed appellant’s identity as David Conboy. The only testimony regarding the “I’m not David Conboy” answer was as follows:

Q. Did you initially make contact with the cab driver?

A. I initially made contact via the passenger’s side of the vehicle. So my first contact is with the defendant.

Q. And what did you say?

A. I said Mr. Conboy.

Q. And what was his response.

A. He said I’m not David Conboy, I’m George, or I’m Mitch Unson, is that he had said to me. Later he gave a full name of George Mitchell Unson, who I later determined was his stepbrother.

Q. And he used the name David Conboy when you had just used the last name?

A. Yes, he did.

Depending on factors such as the size of the community where inquiry is made and how common the surname, there may be some circumstances where one can infer, legitimately, that a denial of one’s identity means the opposite. For instance, if an officer confronts a sober adult on the streets of New York City and says, “Mr. Smith?” and the response is, “I’m not Horatio Smith,” one might possibly infer that the person is, most likely, Horatio Smith. But if, as here, the surname is uncommon, the locale is suburban-residential (about one-third of the way between Ocean City and Berlin, Maryland), and the person responding is drunk, the suggested inference cannot be drawn legitimately. And, in any event, there is no indication that Trooper Grinnan drew the suggested inference,¹² at the point appellant was searched. After Trooper Grinnan got that response, he asked appellant whether he had been driving the van, whether he knew anything about the accident, where he hailed the cab, and why he was in the area. Based on this record, we do not know what appellant said in response to the questions, much less what Trooper Grinnan made of appellant’s responses.

What we do know is that Trooper Grinnan said that at the time of the search, he merely “had a feeling [that there] was a possibility that he [appellant] was a suspect.”¹³ Based on that answer, coupled with all the other circumstances, I believe that, at the time of the search, Trooper Grinnan merely had, at most, a reasonable suspicion, not probable cause, to believe appellant had wrecked the van.¹⁴

Even assuming that the trooper had probable cause to believe that appellant wrecked the van, I do not believe that the trooper, prior to appellant’s confession, had probable cause to believe that appellant had driven the van while under the influence of alcohol. The majority lists several facts in support of a contrary conclusion, viz: (1) appellant “appeared intoxicated” when Trooper Grinnan first saw him, which was forty to forty-five minutes after Trooper Grinnan first arrived at the accident scene; (2) the bottle of vodka in the back seat of the cab “was the sort of property that had been removed from the van”; and (3) given the fact that appellant was then intoxicated, coupled with the fact that the trooper saw “full and empty containers of alcohol,” the trooper “had every reason to believe” that the person who rode in the cab was intoxicated when the accident occurred. Op. at 368-69, 843 A.2d at 225.

There was no evidence that alcohol containers were removed from the van post-accident (Fact 2). The evidence concerning alcohol containers was that Trooper Grinnan saw “alcohol containers in the vehicle, some carrying alcohol.” From this, it can be inferred that some of the alcohol containers did not carry alcohol, but we do not know whether that was because the containers were broken in the crash or whether someone drank their contents. Moreover, even if one were to conclude that there was at least one empty container whose contents had been imbibed, we do not know if the trooper saw one empty container or ten, nor do we know what was in the containers. This leaves the facts that were proven: The appellant smelled strongly of alcohol and “appeared intoxicated” when Trooper Grinnan saw him at the accident scene. The accident, of course, took place before Trooper Grinnan arrived. Even if one were to assume that the accident occurred just moments before the trooper arrived (an unlikely scenario), I do not believe that one can infer legitimately that a person who presently “appeared intoxicated” was therefore intoxicated forty to forty-five minutes previously. To make such an inference, more information would be needed, such as information concerning what alcoholic beverage was imbibed and the amount.

Probable cause is lacking if the circumstances relied on are “susceptible to a variety of credible interpretations not necessarily compatible with nefarious activities.” United States v. Kandlis, 432 F.2d 132, 136, (9th Cir.1970), quoting United States v. Selby, ... 407 F.2d [241,] 243 [ (1977) ].

United States v. Moore, 483 F.2d 1361, 1363 (9th Cir.1973).

At the time appellant was searched, appellant’s words and actions were susceptible of a variety of explanations inconsistent with having driven the van while under the influence of alcohol. Thus, at that point, Trooper Grinnan did not have probable cause to arrest him for that traffic offense.

Y.

The Timing of the Arrest

Although the precise timing is not shown in the record, appellant’s arrest probably took place only one or two minutes after the search. Therefore, the search was “essentially contemporaneous” with the arrest.¹⁵ Accordingly, I concede that the temporal element of the “search incident” exception was met. But as this Court said about two and one-half years ago, meeting the temporal element is not enough. State v. Funkhouser, 140 Md.App. 696, 782 A.2d 387 (2001).

In Funkhouser, the defendant’s vehicle was stopped for a traffic violation; the police officer ordered the defendant out of the car, and the defendant complied with the order. Id. at 108, 782 A.2d 387. The officer then had a “cocaine-sniffing canine” scan the vehicle for the presence of cocaine. Id. at 708, 782 A.2d 387. The dog gave a positive alert at both the front passenger door and the driver’s door. Id. The defendant’s vehicle was then searched, but no drugs were found. Id. at 711, 782 A.2d 387. Afterward, the police officer approached the defendant, who was standing near his car wearing a “fanny pack” around his waist. Id. at 711-12, 782 A.2d 387. The officer searched the fanny pack and found what he believed to be cocaine. Id. at 712, 782 A.2d 387. Funkhouser was arrested immediately after the cocaine was found. Id. at 701, 782 A.2d 387.

On appeal, the State argued, and we agreed, that prior to the search of the fanny pack the police had probable cause to arrest Funkhouser as a result of the positive canine alert. Id. at 721, 782 A.2d 387. The State also argued that the “tight sequencing” between the search and the arrest made the search incident to the arrest. Id. at 731, 782 A.2d 387. In the subject case, the majority adopts a position identical to that advanced by the State in Funkhouser. Op. at 381-84, 843 A.2d at 233-34. But in Funkhouser, Judge Moylan, for this Court, explicitly rejected the State’s position.

That the police have probable cause for a lawful arrest of a person does not in and of itself justify a warrantless search of that person. The search must be incident to an arrest itself. It may not be incident merely to good cause to make an arrest. The existence of an unserved warrant of arrest, for instance, would not justify a warrantless search of a person who is not actually arrested. As this Court observed in DiPasquale v. State, 43 Md.App. 574, 577, 406 A.2d 665 (1979):

That the facts here might have established probable cause for an arrest of the appellant, even before the baggie was seized, and for a good search incident thereto which would have produced the baggie is beside the point. No arrest was made until after the seizure and the arrest was predicated on the observation of the thing seized.

(Emphasis supplied). And see Dixon v. State, 23 Md.App. 19, 26, 327 A.2d 516 (1974) (“At the very threshold of search incident theory, the search must be incident not merely to an arrest but to a lawful arrest.”).

140 Md.App. at 724-25, 782 A.2d 387.

Here, too, Conboy’s arrest was predicated on the thing seized. The Funkhouser Court later explained, in detail, why meeting the temporal element was insufficient:

The State seeks to avoid the foreclosing effect of no arrest having been made [prior to the search] by arguing that the arrest followed the search almost immediately thereafter and was, therefore, “essentially contemporaneous” as if that tight sequencing were dispositive. In this case it is clear, however, that no decision to arrest Funkhouser had been made and that the seizure and search of the “fanny pack” was •no mere incident of an arrest already in motion, even if moments behind, on a parallel track. It was, rather, the finding of suspected drugs in the “fanny pack” that was the precipitating or catalytic agent for Funkhouser’s arrest in this case. There is no suggestion that Funkhouser was going to be arrested regardless of what the search of the “fanny pack” revealed. This was an arrest incident to search.

This case is far more akin to the ostensible incident to arrest which the Supreme Court struck down in Smith v. Ohio, 494 U.S. 541, 110 S.Ct. 1288, 108 L.Ed.2d 464 (1990). The police then grabbed and searched a brown paper grocery bag which Smith had been carrying “gingerly” and then attempted to shield from the police. When they discovered drug paraphernalia in the bag, they immediately arrested Smith. The Supreme Court of Ohio ruled that the search was a constitutional search incident to lawful arrest. Notwithstanding the closeness in time between the search and the arrest, the search was not an incident of the arrest. The Supreme Court held:

That reasoning, however, “justifying] the arrest by the search and at the same time ... the search by the arrest,” just “will not do.” As we have had occasion in the past to observe, “[i]t is axiomatic that an incident search may not precede an arrest and serve as part of its justification.” The exception for searches incident to arrest permits the police to search a lawfully arrested person and areas within his immediate control. Contrary to the Ohio Supreme Court’s reasoning, it does not permit the police to search any citizen without a warrant or probable cause so long as an arrest immediately follows.

494 U.S. at 543,110 S.Ct. 1288.

Essential contemporaneity is a necessary condition for an out-of-sequence incident, but it is not a sufficient condition. “Essentially contemporaneous” is not, in and of itself, a legitimating mantra.

Cases such as Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), and Lee v. State, 311 Md. 642, 537 A.2d 235 (1988), were cases in which the closely related, acts of arresting and searching were proceeding simultaneously. In Anderson v. State, 78 Md.App. at 481, 553 A.2d 1296, we fully explained the significance of being “essentially contemporaneous” as the qualifier for a departure from the ordinary time sequence.

[TJhere is no rigid requirement that the arrest literally precede its search incident. It is enough that they are essentially contemporaneous. The exigencies that give rise to the search incident exception in the first place— the risk of harm to the arresting officer and the risk of destruction of readily accessible evidence — sometimes compel a departure from the formal protocol. There will be occasions when the arresting officer deems it tactfully unwise to lose critical seconds or even to be momentarily distracted from his overriding necessity of “beating his opponent to the draw.” Under the circumstances, it would exalt form over substance to the point of absurdity to insist that an officer clap his hand upon an arrestee’s shoulder and say the operative words, “You are under arrest,” before disarming and/or neutralizing a potentially dangerous target. The paradigm might yield a dead officer. It is enough, therefore, that the search closely anticipate, contemporaneously parallel, or follow shortly after the arrest of which it is an incident. In all three time frames, it is still an incident of the arrest. This is the purpose of the practical requirement that a lawful arrest and its search incident need only be essentially contemporaneous.

(Emphasis supplied).

The temporal proximity between the search and the arrest, however, does not qualify the search as an “incident” of the arrest. That is a separate consideration. The seizing and searching of the ‘fanny pack” in this case was not a consequence or incident of a decision to arrest Funkhouser. The arrest of Funkhouser, rather, was a consequence of what was found in the search of the “fanny pack,” notwithstanding the fact that the detectives may have had an alternative and independent basis for arresting him. They were not acting on such a basis. What was flawed was not the proximity in time between the search and the arrest, but the lack of a proper cause-and-effect relationship. It was of this causative link that we spoke in Anderson v. State.

The exigencies of the essentially combat situation that exempt the policeman from the formal rigidities of parade-ground sequencing do not exempt him, however, from establishing the indispensable cause-and-effect relationship between the predicate event and its incidents.... The search incident may not “bootstrap” itself by using its results to provide its own justification. No search may justify itself on the basis of what it finds.... Thus, although the attendant search need not technically be “subsequent to, ” it must still be “incident to” its predicate lawful arrest. 78 Md.App. [471,] 481-82, 553 A.2d 1296 [ (1989) ] (emphasis added).

The shortness of the time period within which the arrest followed the search in this case could not transform the arrest into the cause of the search. The search had its own independent causation. The search was not an incident to the arrest.

Id. at 731-34, 782 A.2d 387 (some emphasis added).

In my view, the just-quoted portions of the Funkhouser opinion are dispositive. Here, as in Funkhouser, there was no indication that appellant was going to be arrested if the fruits of the search had not revealed a key that fit the van; the search, therefore, “had its own independent causation.” Id. at 734, 782 A.2d 387. And, unlike the situation in Lee v. State, 311 Md. 642, 537 A.2d 235 (1988), and Rawlings v. Kentucky, supra, the “related acts of arresting and searching” appellant were not “proceeding simultaneously.” Id. at 732, 782 A.2d 387. Therefore, even if the police had probable cause to arrest appellant prior to the search, the search was not incident to his arrest.

When the State has procured evidence of guilt via the disfavored or non-preferred modality of a warrantless search, it is the State that suffers the disincentive of a presumption of invalidity. It is the State that then must assume the burden of rebutting that presumption of invalidity and of proving that the warrantless search was somehow justified under one of the “jealously guarded” exceptions to the warrant requirement.

Herbert v. State, 136 Md.App. 458, 493-94, 766 A.2d 190 (2001).

I do not think that the State, without even attempting to do so, fortuitously produced enough evidence to show that the “search incident” exception was here applicable.¹⁶ In my opinion, appellant’s arrest was incident to the search, which is constitutionally impermissible. Sibron v. New York, 392 U.S. 40, 63, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

VI.

The Plain Feel Doctrine

It was unnecessary for the majority to decide whether the “plain feel doctrine” justified extracting the key from appellant’s pocket. Because I believe that the exceptions to the warrant requirement relied upon by the majority are inapplicable, the issue is addressed below.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court held that, as long as there is reasonable, articulable suspicion that the individual is involved in criminal activity, a search for weapons by a police officer, without probable cause or a warrant, during a brief investigatory stop is not unreasonable under the Fourth Amendment. 392 U.S. at 30-31, 88 S.Ct. 1868. Such searches, however, must be limited in scope.

The purpose of a Terry frisk is not to discover evidence, but rather to protect the police officer and bystanders from harm. Terry, 392 U.S. at 29, 88 S.Ct. at 1884, 20 L.Ed.2d at 910-11. Therefore, Terry frisks are limited to a search for weapons that might place the officer or the public in danger. See Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 2136, 124 L.Ed.2d 334 (1993).

In re David S., 367 Md. 523, 544, 789 A.2d 607 (2002).

In Maryland, the right of a police officer, under certain conditions, to perform a “Terry frisk” for handguns has been codified by statute. See Md.Code Ann., Crim. Law § 4-206 (2002). In addition to seizing weapons found on the person during a lawful “pat-down,” officers are allowed to seize contraband whose identity as such is “immediately apparent.” Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).

The scope of a legitimate “Terry frisk” was discussed recently by the Court of Appeals in the case of In re David S., supra. A police officer saw David S. show an object to his companion and then stuff the object in his waistband. 367 Md. at 530, 789 A.2d 607. Based on his extensive law enforcement experience, the officer believed that David S. had secreted a handgun. Id. David S. and his companion were stopped and frisked. When the officer touched the waistband area of David S.’s body, he felt a hard object. Id. Believing the object to be a gun, he lifted David S.’s shirt and saw a black object, which he extracted. Id. The object turned out to be a bag of cocaine. Id.

The Court held that the seizure of the object was legal because, when he felt the hard object, the officer had “even more reason to believe” that David S. was carrying a gun. Id. at 541-42, 789 A.2d 607.

If during a lawful pat-down an officer feels an object which obviously is not a weapon, further patting of it is not permissible. See id. at 378, 113 S.Ct. 2130, 2136, 124 L.Ed.2d 334 (noting that an officer’s continued exploration of a suspect’s pocket after having concluded that it contained no weapon was unrelated to “the sole justification of the search [under Terry ] ... the protection of the police officer and others nearby. It therefore amounted to the sort of evidentiary search that Terry expressly refused to authorize----”); see generally 4 Wayne R. La Fave, Search and Seizure, § 9.5(b), at 275 (1996). The Supreme Court has made clear that “if the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits mil be suppressed.” Dickerson, 508 U.S. at 373, 113 S.Ct. at 2136,124 L.Ed.2d 334. On the other hand, “if a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons.” Id. at 375, 113 S.Ct. at 2137, 124 L.Ed.2d 334. The rationale is that if an officer is legitimately conducting a Terry frisk, no additional privacy interest is implicated by the seizure of an item whose identity is already plainly known through the officer’s sense of tomh. Id. at 377, 113 S.Ct. at 2138, 124 L.Ed.2d 334.

... Therefore, if the officer in the case before us realized that the bag in respondent’s waistband was not a weapon, the search of respondent’s property exceeded the permissible scope of a Terry frisk and the evidence should be suppressed.

In re David S., 367 Md. at 544-45, 789 A.2d 607 (emphasis added).

In the portion of the Minnesota v. Dickerson decision relied upon by the Court in the David S. case, the Supreme Court said:

If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.

Dickerson, 508 U.S. at 375-76, 113 S.Ct. 2130 (emphasis added).

The “plain feel” arm of “the plain view” doctrine was explained in the In re David S. case, viz:

The State argues that once Cpl. Segalman removed the bag and believed it to be a package containing drugs, the officer could seize it under the plain view doctrine. On the record before us, the plain view doctrine is not satisfied. The plain view doctrine of the Fourth Amendment requires that: (1) the police officer’s initial intrusion must be lawful or the officer must otherwise properly be in a position from which he or she can view a particular area; (2) the incriminating character of the evidence must be “immediately apparent; ” and (3) the officer must have a lawful right of access to the object itself. Wengert v. State, 364 Md. 76, 88-89, 771 A.2d 389, 396 (2001). We observed in Wengert that “[t]he requirement that an object’s incriminating nature be ‘immediately apparent’ ensures that the ‘plain view’ doctrine is not used to engage in ‘a general exploratory search from one object to another until something incriminating at last emerges.’ ” Id. at 89, 771 A.2d at 397 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971)). Construing the term “immediately apparent,” we said:

“ ‘Immediately apparent,’ however, does not mean that the officer must be nearly certain as to the criminal nature of the item. Instead, ‘immediately apparent’ means that an officer must have probable cause to associate the object with criminal activity.”

Wengert, 364 Md. at 89, 771 A.2d at 397 (citations omitted). See State v. Wilson, 279 Md. 189, 195, 367 A.2d 1223, 1227 (1977) (prohibiting use of any evidence seized outside the warrant unless it is “immediately apparent to the police that they have evidence of crime before them”).

367 Md. at 545, 789 A.2d 607 (emphasis added).

The State concedes that the key was not seized based upon the concern that it could be used as a weapon. Therefore, in order for the seizure of the key to be within the scope of a permissible Terry frisk, the “incriminating character” of the key must have been “immediately apparent” to Trooper Grin-nan before he extracted it. Id. Or, put another way, when the trooper felt the key, its seizure was legal only if he had probable cause to associate that key with criminal activity.

Trooper Grinnan admitted that he could not tell if the key he felt was for a motor vehicle; he simply knew it was a key of some sort. Except for coins, it is impossible to think of any object that an adult male is more likely to have in his pocket than a key of some sort. Under these circumstances, I would hold that Trooper Grinnan did not have probable cause, at the moment he felt the key, to believe that the key was associated with the crime he was investigating — or any other crime. Because the key was illegally seized, the key should have been suppressed, along with any testimony concerning that key.¹⁷

The Confession

I agree with the majority’s conclusion that appellant was not in police custody when he confessed to Trooper Grinnan and therefore the fact that he had not been advised of his Miranda rights was irrelevant.

The issue of whether Trooper Grinnan’s remark (“It’s funny, the key fits.”) is the functional equivalent of interrogation is a close question, but one that was unnecessary to decide. Therefore, I would not have decided it.

For the foregoing reasons, I would reverse the conviction and remand the case to the circuit court for retrial.

7 . The facts set forth are based upon the testimony of Trooper David Grinnan, the lone witness at the suppression hearing.

8 . The record does not contain Wolf's first name.

9 . On cross-examination, Trooper Grinnan testified as to the sequence of events as follows:

Q. So ... you ... initially arrived on the scene, and then you left about thirty or forty minutes; is that correct?

A. That’s correct.

Q. And you didn’t see anybody when you were initially on the scene?

A. No, I did not.

Q. No one came up to you and said that they saw the accident occur or anything like that?

A. No.

Q. So you came back to the scene about thirty or forty minutes later and went and searched the van again. And at some point you observed a taxi, and you said that the taxi was about thirty yards away—

A. That’s correct.

10 . According to an agreed statement of facts introduced at trial, Con-boy’s true identity was not discovered by the police until after Conboy had been taken back to police headquarters, booked, and released.

11 . The Transportation Article of the Maryland Code does have provisions sanctioning a driver of a vehicle who leaves the scene of an accident without fulfilling his or her duty to give aid (if bodily injury is involved) or information if an unattended vehicle or other property is damaged. See Md.Code Ann., Transp. II §§ 20-103 to 20-105 (1977, 2002 Repl.Vol.). But none of these sections is here applicable.

For Fourth Amendment purposes, the legality of an arrest is determined under State law, ‘‘absent any federal statute to the contrary.” State v. Evans, 352 Md. 496, 518, 723 A.2d 423 (1999). Under Maryland law, a warrantless arrest may be made for any offense committed in the officer’s presence. Additionally, a warrantless arrest may be made for any felony, whether committed in the arresting police officer's presence or not, if the officer has probable cause to believe that a felony has been committed and the suspect committed it. In regard to misdemeanors and traffic offenses, the rule is different. Save for certain exceptions spelled out by statute, an officer may not arrest a suspect without a warrant for misdemeanors or traffic offenses not committed in the officer’s presence, even if the officer has probable cause to believe the suspect has committed the crime or violation. There are, however, exceptions to this rule. For misdemeanors listed in section 2-203(b) of the Criminal Procedure Article of the Maryland Code (2001) and for traffic offenses listed in section 26-203 of the Transportation Article of the Maryland Code (1977, 2002 Repl.Vol.), a police officer may arrest if he/she has probable cause to believe that the suspect has committed the offense out of his/her presence. Driving while under the influence is one of the traffic offenses that comes within the exception.

12 . At appellant’s trial, it was revealed that Trooper Grinnan charged appellant under the name of George Mitchell Unson and that it was not until he was released from police custody that it became known that appellant’s real name was David Conboy. Thus, as a historical fact, we know that appellant’s "I’m not David Conboy" response did not, in fact, “confirm his identity” in Trooper Grinnan’s mind.

13 . On cross-examination, the following colloquy took place as to what Trooper Grinnan thought as he asked appellant questions immediately prior to the search:

Q. Okay. And you also indicated in your report that you stopped the taxicab and you began to interview the passenger who was later Mr. Conboy, so you began questioning him about, you said first you asked him his name. Did you ask him, do you know anything about the accident or—

A. Yes, I went through the standard questions of, you know, were you driving this van, what is your business over here, where did you get picked up, that kind of stuff. And it was actually my phone call to the Sunshine Cab Company is how I located all of the equipment that was in his van.

Q. So you were asking him questions about the accident?

A. Yes.

Q. It was at that point you had a feeling, this is the guy based on all of those things?

A. Yes, I had a feeling it was a possibility that this person is a suspect, yes.

(Emphasis added.)

14 . Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.

Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

15 . In Ricks v. State, 322 Md. 183, 191 n. 2, 586 A.2d 740 (1991), the Court said:

The search in this case would not have been invalid, even if Ricks was arrested after the search of the bag. As long as the search and the arrest are essentially contemporaneous, a search may be analyzed under the principles governing searches incident to arrest. Lee [v. State ], 311 Md. [642,] 668, 537 A.2d 235 [ (1988) ], citing Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Anderson v. State, 78 Md.App. 471, 481-82, 553 A.2d 1296 (1989).

16 . The motions judge did not think the "search incident" exception was applicable either. He evidently believed the "plain feel” doctrine was applicable. The motions judge said:

Well, yes, there is no argument, the purpose of the pat-down is not for discovery of evidence. But if in the process of the pat-down he discovers something that he knows or feels to be relevant, he can't just ignore that, he has the right to go ahead and seize the key.

17 . The "fruit of the poisonous tree” doctrine is an aspect of the exclusionary rule, a judicially imposed sanction for violations of the Fourth Amendment right against improper arrests and unreasonable searches and seizures in prosecutions, and requires courts to suppress evidence that is the product of unlawful governmental activity. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Ferguson v. State, 301 Md. 542, 483 A.2d 1255 (1984).

Pringle v. State, 370 Md. 525, 547 n. 13, 805 A.2d 1016 (2002), rev'd on other grounds, — U.S. -, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003).

In this appeal, appellant failed to argue that his statements would be inadmissible as a fruit of the poisonous tree, but, at a minimum, that issue would provide food for thought, if the conviction were reversed— as I believe it should be. See Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) ("If the protective search goes beyond what is necessary to determine if the suspect is aimed, it is no longer valid under Terry and its fruits will be suppressed.”)