Liichow v. State , 288 Md. 502 ( 1980 )

Eldridge, J.,

delivered the opinion of the Court. Murphy, C. J., and Smith and Rodowsky, JJ., concur in part and dissent in part. Murphy, C. J., filed an opinion concurring in part and dissenting in part at page 515 infra, in which Smith and Rodowsky, JJ., join.

Robert Liichow, the petitioner, was convicted in a nonjury trial in the Circuit Court for Washington County on nine counts of possession of several types of controlled dangerous substances. These substances had been kept in a plastic bag which, without a warrant, was seized and then searched by a Maryland State Police trooper while Liichow was moving his possessions from a rented dwelling. The issue presented is whether the warrantless seizure and search of the plastic bag, in the circumstances of this case, violated petitioner’s constitutional right to be free from an unreasonable search and seizure.

The following facts were introduced at a pre-trial suppression hearing. On August 11, 1977, in late morning, Liichow and his girlfriend were in bed in a rented house trailer when the girl’s former boyfriend, displaying a gun, broke into the trailer, chased Liichow out of the trailer and into a field, and fired a shot at him. Liichow ran to the trailer owner’s house and requested that the owner call the police. Trooper Twigg of the Maryland State Police responded.

With the disturbance over, Liichow and his girlfriend assented to the trailer owner’s request that they leave the trailer and began packing' their possessions into the girlfriend’s car. Although Trooper Twigg had left the site while the packing was going on, he returned when the owner reported another disturbance between Liichow and the former boyfriend. The second disturbance had subsided by the time Twigg arrived. After Twigg’s arrival for the second time, the police officer told Liichow that he could never come back onto the property. According to Twigg’s testimony, Liichow then received Twigg’s permission to retrieve some "personal belongings” behind the trailer. When Twigg started to accompany him, Liichow requested that Twigg not follow him. Although Twigg, having been told of the incident with the gun and that Liichow had previously had a knife to defend himself, testified that he was concerned about possible weapons, nevertheless the police officer permitted Liichow to go behind the trailer alone.

Trooper Twigg testified that Liichow, when he returned from behind the trailer, was carrying a large plastic bag, about eighteen inches square, "and he had this bag crumpled together on top of the open end and it was wrapped around his arm and he was holding it with the other arm.” Twigg’s testimony continued:

"When he come around to the front of the trailer he come back this side to get in the car, that is when I approached him and requested to see in the bag. He refused and as he went to the car and attempted to enter the car, the bag fell from his arm and he fell down and he was holding it with the top of it and as he got into the car, I was still concerned about the bag and I was probably no more than five feet from him and I could see as he got into the car, I could see some white tablets down in the bottom of the bag. There was a group of them. They looked like they were in another bag, what I could see but they were in a tight group. I would estimate probably fifty tablets. They were white tablets size, approximately the size of a dime.”

Later, Trooper Twigg again explained how he came to see the white tablets:

"Mr. Liichow was in the car, or was getting in the car when I saw the tablets; he wasn’t completely in the car, he was getting in the car and in his movement to get into the car, the bag come loose from his arm and he was holding on to the bag and he went on and reached and got in the car and that is when I saw the tablets. And as he was getting in the car I approached him and reached for the bag and he took it from this hand to this one and tried to get it down under the front seat.”

When Liichow attempted to put the plastic bag under the car seat, Twigg reached into the car and grabbed the bag. As to the nature of the plastic bag, Trooper Twigg testified that it was "not completely clear; it was cloudy.” However, the officer stated that he "could see through the plastic bag.”

After seizing the plastic bag, Twigg opened it. He stated that the white tablets, which he had previously observed, were in a completely clear "small plastic bag, like a small sandwich bag ... down inside of the large bag.” The plastic bag also contained nontransparent brown paper bags, which in turn contained several types of tablets, capsules and some brown leafy matter. Additionally, the large plastic bag contained personal articles.

Twigg "suspected” that the white dime size tablets, the other tablets and capsules, and the leafy matter, were all controlled dangerous substances. Subsequently, Liichow was taken to the police barracks, and, when tests verified that the tablets, capsules and leafy matter were controlled dangerous substances, Liichow was formally charged.

At the suppression hearing, on cross-examination, Twigg testified that during his ten years as a trooper, he had normally been assigned to traffic patrol. He was questioned concerning the basis for his suspicion that the white tablets were controlled dangerous substances:

"Q. Had you ever seen tablets like that before?

A. I had seen . . .

Q. Had you ever seen tablets like that before in your life?

A. I have.

Q. All right, what were they?

A. CDS — controlled dangerous substance.

Q. What CDS?

A. I’m not familiar with the names, the specific names or anything.

Q. Trooper, isn’t it true that you never made a narcotic arrest in your life, except two or three times for marijuana.

A. For marijuana, right.

Q. In all your ten years?

A. I have been in on investigations on other, on other narcotic arrests, assisting other Troopers.

Q. Now, [tell] the Court what those white tablets were? What did you suspect they were?

A. They, I suspected they were some type of controlled dangerous substance.

Q. What type?

A. Beyond me.

Q. You had no idea what those type of tablets were and isn’t that the truth?

A. I didn’t know exactly what they were, but I suspected them to be ...

Q. But you suspected them based on what?

A. From my knowledge as the training I received on my job, the training, the booklets, classroom training on narcotics ...

Q. Based on your training and your knowledge, what did you suspect those white tablets were?

A. I could not say exactly what they were.

Q. You couldn’t say exactly ...

A. I knew they were some type of controlled dangerous substance.

Q. Well, what type?

"A. They looked similar to some other pills that I have seen, some other tablets that I have seen were CDS and at that time that is all I needed to go on.”

Shortly thereafter, the testimony continued as follows:

"Q. Did you know at that time whether or not they were prescription drugs or not?

A. At that time, no.

Q. Did you know at that time whether or not they were patent medicine? Do you know what I mean when I say 'patent medicine,’ don’t you? In other words counter medicine?

A. I didn’t know what they were other than I suspected them to be CDS, because they did appear, pictures of other tablets that I have seen in books and the training we got, they looked similar to other tablets that I have seen. They weren’t ... that is the only thing I can say.”

On his own behalf, Liichow testified that the plastic bag was opaque. Further, he testified that all of the drugs were completely inside a brown paper bag, which was inside the plastic bag. Thus, he contended that there "was nothing visible” and that it was impossible to see anything in the bag.

The trial judge, crediting Twigg’s testimony, concluded that Twigg had probable cause to seize and search the bag. The court denied the motion to suppress the evidence. At the subsequent trial, the parties submitted the case to the trial court solely on the basis of the transcript of the pre-trial suppression hearing and an earlier preliminary hearing, and Liichow was convicted.

In an unreported opinion, the Court of Special Appeals affirmed, holding that the circumstances were sufficient to satisfy the "automobile exception” to the requirement that searches and seizures be performed pursuant to a warrant. The intermediate appellate court concluded that, because Liichow was leaving the area, exigent circumstances were established. As to the probable cause, the Court of Special Appeals noted that the trial court, as the finder of fact charged with resolving credibility and disputed factual issues, was entitled to believe Twigg’s testimony. Consequently, the intermediate court concluded that Twigg’s having seen the white tablets, in addition to the other circumstances in the case, constituted probable cause to believe that the plastic bag contained contraband.

This Court then granted Liichow’s petition for a writ of certiorari which presented the following questions:

"1. Whether probable cause existed for the warrantless seizure of certain controlled dangerous substances where a police officer with slight training or experience as to drugs observed only that Petitioner was carrying a bag containing 'white tablets, dime sized.’

"2. Whether the observations of the police officer were tainted by his conduct in requiring Petitioner to remove his personal belongings from leased premises without an eviction notice or formal legal proceedings of any kind.

"3. Whether the subsequent search of a plastic bag described by Petitioner as containing his personal property required the obtaining of a search warrant under the rationale of Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235.” ¹

In our view, Liichow’s convictions must be reversed on the basis of the third question presented, namely that the warrantless search of the large plastic bag was invalid under the rationale of Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979). Consequently, we shall assume, without deciding, that in the circumstances of this case Trooper Twigg had probable cause to seize the large plastic bag under the so-called "automobile exception” to the requirement of a warrant.² Furthermore, in light of our holding, we need not discuss the second issue raised in the certiorari petition.

In Arkansas v. Sanders, supra, the Supreme Court made it clear that the mere existence of probable cause to stop an automobile and seize certain contents from the vehicle, thereby bringing the seizure within the "automobile exception” to the warrant requirement, did not validate the warrantless search of the contents themselves. The Court refused to "extend Carroll [i.e., the automobile exception] to allow warrantless searches of everything found within an automobile, as well as of the vehicle itself.” 442 U.S. at 762. In Sanders, the police, having probable cause to believe that the defendant was carrying marijuana in a suitcase, stopped the automobile in which he was riding, searched the vehicle, and seized and searched the suitcase, discovering the marijuana. The Supreme Court took the position that the police, acting on probable cause to believe that the taxi contained contraband, had validly stopped and searched the vehicle and seized the suitcase, 442 U.S. at 761. The Court, however, held that the subsequent search of the suitcase was invalid. As the Court explained (id. at 763-764):

"A closed suitcase in the trunk of an automobile may be as mobile as the vehicle in which it rides. But... the exigency of mobility must be assessed at the point immediately before the search — after the police have seized the object to be searched and have it securely within their control.. .. Once police have seized a suitcase..., the extent of its mobility is in no way affected by the place from which it was taken. Accordingly, as a general rule there is no greater need for warrantless searches of luggage taken from automobiles than of luggage taken from other places.” (Emphasis added.)

At issue in Sanders was a suitcase, an item of personal luggage. The Court observed that such an item was "a common repository for one’s personal effects, and therefore is inevitably associated with the expectation of privacy.” Id. at 762. The Court further pointed out (id. at 764-765 n. 13):

"Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance. Similarly, in some cases the contents of a package will be open to 'plain view,’ thereby obviating the need for a warrant.”

Thus, according to the Court, "the extent to which the Fourth Amendment applies to containers and other parcels depends not at all upon whether they are seized from an automobile.” Id. at 765 n. 13.

Consequently, the validity of Twigg’s search of the plastic bag depends on whether Liichow had a constitutionally protected expectation of privacy in the bag. The traditional test for determining whether a person’s interest in personal property is constitutionally protected from an unreasonable search is whether he has an actual expectation of privacy in the property, and whether that expectation is one which society would recognize as reasonable. Arkansas v. Sanders, supra, 442 U.S. at 765; Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979), affirming Smith v. State, 283 Md. 156, 389 A.2d 858 (1978); Rakas v. Illinois, 439 U.S. 128, 143-144 n. 12, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978); Venner v. State, 279 Md. 47, 367 A.2d 949, cert. denied, 431 U.S. 932, 97 S. Ct. 2638, 53 L. Ed. 2d 248 (1977).

In Morton v. State, 284 Md. 526, 397 A.2d 1385 (1979), the defendant had been carrying a plastic bag containing a gun, marijuana and some photographs. He placed the bag on the floor, along the side, of a basketball court in a recreation center while he was apparently playing basketball. The police, after arresting the defendant, found the plastic bag and searched it without obtaining a warrant. In holding that the warrantless search was invalid, this Court expressly held that the defendant had a reasonable expectation of privacy in the contents of the plastic bag and that the defendant had not relinquished this expectation of privacy by placing the bag on the floor, 284 Md. at 531-532. Chief Judge Murphy there concluded for the Court (id. at 533, emphasis supplied):

"We think the appellant had a reasonable expectation of privacy in the contents of the jacket and plastic bag while he was inside the recreation center, and that nothing which he said or did evidenced an intent to abandon his protected privacy interest in these belongings. We hold that the appellant’s fourth amendment claim to privacy from governmental intrusion was reasonable and that the search of the jacket and plastic bag was unlawful.”

Turning to the instant case, we conclude that the defendant Liichow also had a constitutionally protected expectation of privacy in the plastic bag. He plainly had an actual expectation of privacy in the bag and its contents, as was demonstrated by his request to be left alone when he went to get it, by his refusal to let Trooper Twigg examine it, and by the protective manner in which he carried it. Moreover, his expectation was not an unreasonable one. As we recognized in Morton, one’s expectation of privacy in a plastic bag may, in appropriate circumstances, be constitutionally protected. In this case, Liichow was moving from the trailer, and he used the bag to carry personal belongings just as one might use any other type of container to transport his personal belongings. It would be normal in such circumstances to use a plastic bag to carry and load personal belongings into a car as part of a move from residential premises. Furthermore, as in Morton, there were personal items inside the plastic bag other than the controlled dangerous substances. Consequently, we hold that the plastic bag could not be searched without a warrant. Therefore, the controlled dangerous substances found as a result of the unlawful search should not have been admitted in evidence.

The State in its brief suggests that the search was proper because the white dime-size tablets "had already been observed in open view by the police officer.” The State is apparently relying upon a different exception to the warrant requirement, namely the so-called "plain view exception.” It is doubtful if this issue is encompassed by the questions presented in the certiorari petition, and the State filed no cross-petition for a writ of certiorari. Thus, the issue would not appear to be before us under Maryland Rule 813 a. However, assuming arguendo that the issue is before us, we find no merit in the State’s suggestion.

The Supreme Court in Coolidge v. New Hampshire, supra, 403 U.S. at 466, stated concerning this exception to the requirement of a warrant:

"What the 'plain view’ cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused — and permits the warrantless seizure. Of course, the extension of the original justifícation is legitimate only where it is immediately apparent to the police that they have evidence before them; the 'plain view’ doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.” (Emphasis added.)

The above-quoted requirement for invoking the plain view doctrine was not met here.

Trooper Twigg’s statement, that he could see white pills at the bottom of a non-transparent bag, is not sufficient to meet the standard that it must be "immediately apparent to the police that they have evidence before them.” Even assuming arguendo that Twigg could have gotten a reasonably clear view of the white tablets under the conditions here, merely seeing dime-size white tablets among personal belongings does not make it immediately apparent that the viewer has before him evidence of criminal conduct.

It is true that in some situations, a trained policeman’s observation of certain types of capsules, powders, etc., has been deemed sufficient to meet the requirements of the plain view doctrine. But to say that dime-size white tablets taken from the area of one’s residence, without corroborating circumstances, constitute apparent evidence of a crime, is certainly to relax the standard set forth in Coolidge v. New Hampshire, supra. Literally thousands of small white tablets are manufactured by pharmaceutical firms. Various lawful common white tablets are about the size of a dime, such as many brands of antacid tablets, high blood pressure tablets, vitamin tablets, etc. The presence of these tablets among one’s personal belongings, without more, is simply not a reasonable basis for a warrantless seizure.

An instructive case is State v. Elkins, 245 Or. 279, 422 P.2d 250 (1966), where a police officer, in the course of lawfully searching the defendant’s person for a weapon, found an unlabeled bottle containing, inter alia, white tablets. The defendant appeared to be intoxicated at the time, and the officer testified that he was suspicious of the white tablets. The officer seized the tablets; they turned out to be methadone; and the defendant was convicted of illegal possession of narcotics. In reversing and holding that the warrantless seizure of the tablets could not be upheld under the plain view theory, the Supreme Court of Oregon stated (422 P.2d at 254):

"The officer had no information from which it was reasonable to assume that the pills might be contraband. The conclusion to be drawn from the évidence was that the officer was acting on suspicion. It is not enough that the officer suspects in good faith, his suspicion must be reasonable. In the hearing before the judge and out of the presence of the jury on the propriety of the seizure, there was no evidence that the defendant was known to the officer to be an habitual narcotics user; that the officer was familiar with the actions of persons under the influence of narcotics and the defendant’s actions were similar; that he was familiar with the appearance of methadone pills and these were similar; that he had been informed by reliable sources that the defendant was in possession of narcotics; nor was there any other type of evidence which is usually used to justify an arrest without a warrant and a resulting seizure. The seizure was unreasonable.”

The same absence of information corroborating Twigg’s suspicion, that the white pills were controlled dangerous substances, existed in the case at bar. This is clearly demonstrated by Twigg’s testimony at the suppression hearing, as previously set forth. See also State v. Meichel, 290 So. 2d 878 (La. 1974) (police officer’s seeing pills in a bottle on the front seat of an automobile held not within the plain view doctrine); State v. McCrea, 22 Wash. App. 526, 590 P.2d 367 (1979).

In sum, the warrantless search of the large plastic bag cannot be justified under any of the contended for exceptions to the requirement of a search warrant. The search violated the Fourth Amendment and Art. 26 of the Maryland Declaration of Rights, and the evidence obtained should have been suppressed.

Judgment of the Court of Special Appeals reversed, and case remanded to that court with instructions to reverse the judgment of the Circuit Court for Washington County and remand the case for a new trial.

Costs to be paid by Washington County.

1 . The questions presented did not limit the scope of the search and seizure issues to the Fourth Amendment to the United States Constitution. Therefore we shall treat the contentions as being grounded on both the Fourth Amendment and Article 26 of the Maryland Declaration of Rights. Although the wording of Article 26 is somewhat different than that of the Fourth Amendment, this Court has taken the position that Article 26 is generally in pari materia with the Fourth Amendment and similarly prohibits unreasonable searches and seizures. Merrick v. State, 283 Md. 1,4 n. 2, 389 A.2d 328 (1978); McChan v. State, 238 Md. 149, 158, 207 A.2d 632 (1965), cert. denied sub nom. Jones v. State, 384 U.S. 1021, 86 S. Ct. 1929, 16 L. Ed. 2d 1022 (1966); Blum v. State, 94 Md. 375, 51 A. 26 (1902). See also Givner v. State, 210 Md. 484, 124 A.2d 764 (1956); Lambert v. State, 196 Md. 57, 75 A.2d 327 (1950); Bass v. State, 182 Md. 496, 35 A.2d 155 (1943).

2 . As to the "automobile exception,” see, e.g., Arkansas v. Sanders, 442 U.S. 753, 760, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979). Coolidge v New Hampshire, 403 U.S. 443, 458-462, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); Chambers v. Maroney, 399 U.S. 42, 48-52, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925); Duncan and Smith v. State, 281 Md. 247, 254-255, 378 A.2d 1108 (1977); England and Edwards v. State, 274 Md. 264, 269-274, 334 A.2d 98 (1975).