author: Moylan, J.,

text:
    CLYDE GEORGE DIXON v. STATE OF MARYLAND
    [No. 970,
    September Term, 1973.]

      Decided October 14, 1974.

      The cause was argued before Morton, Moylan and Moore, JJ.

      Gerald A. Kroop for appellant.

      Leroy Handwerger, Assistant Attorney. General, with whom were Francis B. Burch, Attorney General, Richard J. Kinlein, State’s Attorney for Howard County and Allen Horvitz, Assistant State’s Attorney for Howard County, on the brief, for appellee.

      . For an incisive analysis of this remarkable phenomenon, see Judge Irving Younger in People v. McMurty, 64 Misc. 2d 63, 314 N.Y.S. 2d 194 (N.Y. City Crim. Ct. 1970). And see generally Comment, Police Perjury in Narcotics “Dropsy" Cases: A New Credibility Gap, 60 Georgetown L.J. 507 (1971).

   Moylan, J.,

delivered the opinion of the Court.

With the possible exception of the “dropsy” cases, no aspect of Fourth Amendment litigation has afflicted law enforcement with the yawning credibility gap wrought by inventory searches. The conviction of the appellant, Clyde George Dixon, by Judge James Macgill in the Circuit Court for Howard County for (1) driving while under the influence of drugs in contravention of Article 66/2, Section 11-902 (a), and (2) possession of barbiturates, occasions a hard look at the particular “inventory search” relied upon in this case specifically and at the constitutional validity of the inventory-search rationale generally.

The Factual Background

But for the all-too-real discomfiture of the appellant, the misadventure that brought him to his present sad estate was vintage Buster Keaton. At 11 a.m. on November 6, 1972, he pulled innocently onto the parking lot adjacent to the Howard County Courthouse in Ellicott City and committed the fatal blunder of parking in a “no parking space” under the watchful eye of the Howard County Central Alarm headquarters. Thirty minutes later the episode was over, with the appellant in full custodial arrest, his car impounded and searched, and himself charged with the possession of barbiturates found in the course of that search. Juridically as well as botanically, “great oaks from little acorns grow.”

The Courthouse and the Central Alarm headquarters occupy two sides of a common parking lot in Ellicott City. Immediately in front of Central Alarm, on November 6, 1972, were parked two large and mobile emergency generators. Beside (or perhaps between) the generators were three “no parking spaces,” also immediately in front of Central Alarm. John Earp — a dispatcher for Central Alarm — was watching from the open doorway of his headquarters, which was up one flight of stairs and commanded a good view of the parking lot, as the appellant initially moved onto and across that lot. The appellant attempted to back his car into one of the prohibited spaces, a move requiring a sharp left-hand turn because of the generators. In the course of the maneuver, the left front fender of the appellant’s car struck one of the parked generators. The appellant, without any apparent undue effort, then simply pulled forward and renegotiated his way into an adjacent but also prohibited space. Earp called the police.

Earp then accosted the appellant and reminded him that he had bumped the generator. The appellant replied that “it didn’t seem to be damaged too bad” and, according to Earp, “seemed to be indifferent to the fact.” Dismissing the subject of the accosting, the appellant then asked Earp for and received directions to the jail, which was one floor below Central Alarm. Chagrined at the appellant’s nonchalance, Earp then placed a second call to the police to inform them that the subject of the first call had “left my location and gone down to the jail.” Earp positioned himself on a catwalk outside Central Alarm and maintained his vigil. Shortly thereafter, the appellant left the jail and started up the stairs to the parking lot level. Earp observed him “stumble” (but not fall) as he climbed the stairs. The appellant immediately regained his balance and walked across the parking lot toward the Courthouse. In going around a solid rank of parked cars, the appellant, still under Earp’s surveillance, “walked into the back of a car parked right on the corner, at which time he — then he continued toward the Courthouse.” Earp placed yet a third call to the police to keep them current on the appellant’s movements. A few minutes later, Earp observed the appellant return from the Courthouse toward his car. A fourth call was placed to the police. Earp, now partially distracted by other duties, finally observed the appellant getting into his car and leaving the parking lot. Earp conceded that, generally speaking, the appellant “seemed to be walking fairly normally” and that nothing was unusual about his breath.

The only other witness in the case was Patrolman First Class Steven Greisz of the Howard County Police Department. He, with his partner, was on routine patrol north of Ellicott City when he received a radio dispatch that “a parking violation” had occurred “in the Courthouse parking lot.” When the officers arrived at the scene, the appellant had not yet returned to his vehicle. Instead of routinely writing out a ticket and leaving it under the windshield wiper, the officers ran a computerized check on the car and “found it not to be stolen and so forth.” The testimony is somewhat equivocal as to whether or not the officers deliberately waited for the parking violator to return to the scene of his violation rather than simply leave the ticket and move on. On cross-examination, Officer Greisz asserted that the appellant returned to his car before the writing of the warning ticket was completed. On direct examination, Officer Greisz characterized his attitude as, “While we were there, hopefully awaiting the occupant or the driver to come to the car . . . .” In any event, the appellant returned. Officer Greisz accosted him, “Sir, would this be by any chance your vehicle?” The appellant acknowledged that the car belonged to his sister (who lived with him in Baltimore) but that he had been driving it. Upon demand, the appellant produced license and registration card, both of which were in good order. The officer served a warning ticket on the appellant for the parking violation and asked the appellant to move the car. The appellant got in the car and Officer Greisz, with his partner, ostensibly left the area.

They moved, however, only so far as a contiguous “back parking lot” in order to maintain a discreet surveillance on the appellant. In the course of this move, they “lost him.” The appellant had apparently walked back to the Courthouse. The officers immediately returned to the scene of the parking violation and soon located the appellant. Officer Greisz told him that if he did not move the car immediately, he would receive a ticket instead of a mere warning. The appellant, at this urging, then moved his car to the “back parking lot.” The officers followed him closely. Under their scrutiny, the appellant blundered again. He attempted to park in “a striped area which is not a designated parking space” instead of in a proper area which is “designated by white lines in the back Courthouse parking lot.” Officer Greisz “advised him that he had to park in a proper space, which he did at that time.” The officers, ultimately mollified, drove off.

Although the ultimate characterization of the appellant by Officer Greisz was an amalgam of observations made during this initial encounter and twenty minutes later at the time of the appellant’s arrest, the bulk of the characterization refers to the appellant during the initial encounter. Officer Greisz summarized:

“I observed, as I said, at the time of arrest and also at the time I issued Mr. Dixon his warning in the parking area down in front of Central Alarm headquarters, that his breath was apparently normal. There was no — I couldn’t detect any odor of alcohol on his breath at that point. The color of his face was normal, his clothes were in an orderly fashion. His attitude during a majority of the, my confrontation with him, was polite and cooperative. He had, as far as I know, no unusual actions, no profanity or anything like this. He eyes were slightly bloodshot, his balance was fair and his walk was fair. His turning ability was fair. His speech was slurred.”

As to the initial encounter, the bottom line is that the officers, after speaking with the appellant and after observing him drive his car, were satisfied to let the warning for the parking violation suffice. The.incident as far as they were concerned having ended, they drove off.

Some twenty minutes later, the two officers were at the Golden Triangle Shopping Center at the intersection of Route 40 and Route 29 when a second of the calls, of the total of four dispatched by Earp to the police, caught up with them. Not comprehending that the initial complaint had come in four times and that they were still getting (and were yet to get)' Repetitions of the complaint which they had already handled, the officers- obviously surmised that the appellant was back down in the prohibited parking space in front of Central Alarm, from which they had driven him twenty minutes earlier. The officers hurried back to the Courthouse. As they climbed the steep hill of Court Avenue in their final approach to the Courthouse, yet a third of the original four complaints caught up with them. It was the one that informed them that the appellant had bumped into the generator. They concluded that this had happened as they were hurrying back to the scene. These two anachronisms were uppermost in the minds of the officers when they approached the Courthouse and “observed the car on the back parking lot in motion.” They turned on their emergency lights, moved to the rear of the appellant’s car and motioned for the appellant to stop. He stopped. Officer Greisz immediately advised the appellant “that I was placing him under arrest at this point for driving while intoxicated.” Without another observation being made or another word being said, the appellant was removed from his vehicle. According to Officer Greisz, “At this point he was searched, a frisk search for weapons at that point, and advised he was under arrest. He was placed in the police vehicle and advised of his Miranda rights.”

A subsequent search of the appellant’s automobile produced from the back seat two white tablets, which were analyzed and found to be controlled barbiturates. The critical character of that seizure is patent, since the two tablets were the gravamen of the possession charge, on which the appellant was convicted and sentenced to a term of eighteen months. They were also indispensable exhibits in proving the charge of driving while under the influence of a drug, for which the appellant was sentenced to a term of six months to be served concurrently with the other sentence. We turn now to the legitimacy of that seizure.

I

Search Incident and Carroll Doctrine Rationales Inapplicable

Of the recognized exceptions to the warrant requirement, Katz v. United States, 389 U. S. 347, 357, 88 S. Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967); Coolidge v. New Hampshire, 403 U. S. 443, 454-455, 91 S. Ct. 2022, 2032, 29 L.Ed.2d 564, 576 (1971), neither the search incident to a lawful arrest nor the so-called “automobile exception” (the Carroll Doctrine) need detain us long.

The search of the automobile cannot be legitimated as an incident of the appellant’s arrest for several quite distinct reasons. At the very threshold of search incident theory, the search must be incident not merely to an arrest but to a lawful arrest. A violation of Article 66/2, Section 11-902 (a), is a misdemeanor. A warrantless arrest for a misdemeanor is permitted only when the misdemeanor occurs in the presence of the arresting officer. When the officers returned to the Courthouse parking lot, they observed nothing but the appellant driving his automobile on the back parking lot of the Courthouse. Under our obligation to make an independent review of the evidence where constitutional issues are involved, we find as a constitutional fact that no probable cause existed to arrest the appellant for driving while intoxicated. Even permitting the officers their mistaken beliefs produced by the communications mix-up, we do not find that parking in a prohibited parking space or even bumping into a generator add up to probable cause to believe that the driver is intoxicated. Indeed, full personal observation of the appellant’s speech and behavior some twenty minutes earlier had not led the officers to any such conclusion. Without a lawful arrest, there can be no constitutional search incident.

Even if the arrest had been lawful, however, the search was not “essentially contemporaneous” with the arrest. It occurred a short, but nevertheless significantly measurable, time thereafter. The unity of time was not satisfied. Preston v. United States, 376 U. S. 364, 84 S. Ct. 881, 11 L.Ed.2d 777 (1964). The search was, furthermore, beyond the permitted search perimeter of Chimel v. California, 395 U. S. 752, 89 S. Ct. 2034, 23 L.Ed.2d 685 (1969). The State urges strenuously upon us United States v. Robinson, 414 U. S. 218, 94 S. Ct. 467, 38 L.Ed.2d 427 (1973), and Gustafson v. Florida, 414 U. S. 260, 94 S. Ct. 488, 38 L.Ed.2d 456 (1973), as legitimating a full search incident after a traffic arrest. The principle of Robinson and Gustafson is not here apposite. They dealt with the purpose of a search incident and not its geographic range in space. They did not purport to alter, and indeed did not alter, the “wingspan” limitation of Chimel, whereunder a search incident is limited to that area within the lunge, within the reach, within the grasp of the arrestee — the area “which may fairly be deemed to be an extension of his person” — the area within which the arrestee might grab for weapons or destroy evidence. In the instant case, the appellant-arrestee was safely ensconced in the police car when the search of his own automobile took place some appreciable distance away — clearly beyond his “wingspan.”

Nor may the State rely upon the so-called “automobile exception” under Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925). Neither of the constitutional prerequisites — probable cause to believe that the automobile contained evidence of crime and exigent circumstances — was established. The State, indeed, eschewed all reliance upon “automobile exception” theory.

II

The Inventory Search as a Launching Pad for a Plain View Doctrine Seizure

Before analyzing the “inventory search” in issue, it is initially necessary to place inventory searches generally in their proper analytical frame of reference. An inventory search of an automobile is not an automobile search within the meaning of the “automobile exception.” Untold confusion has resulted from the mistaking of functional categories for analytical categories. Many examinations of the interior of an automobile, functionally speaking (that is, an inspection for some purpose or another of a vehicle that has four wheels and a motor), have nothing whatsoever to do with the “automobile exception,” analytically speaking. Preston v. United States, supra, involved the search of an automobile, but was a “search incident” case and not an “automobile exception” case, analytically speaking. And see Howell v. State, 18 Md. App. 429, 306 A. 2d 554 (1973), reversed on factual insufficiency but preserving the frame of analysis in Howell v. State, 271 Md. 378, 318 A. 2d 189 (1974).

Harris v. United States, 390 U. S. 234, 88 S. Ct. 992, 19 L.Ed.2d 1067 (1968), involved the seizure of an incriminating item of evidence from an automobile but was a Plain View Doctrine case and not an “automobile exception” case, analytically speaking. A similar dichotomy between the literal probing into an automobile, functionally speaking, and a Plain View Doctrine seizure, analytically speaking, occurred in Cady v. Dombrowski, 413 U. S. 433, 93 S. Ct. 2523, 37 L.Ed.2d 706 (1973).

Conversely, all searches and seizures involving the “automobile exception” (or preferably, the Carroll Doctrine), do not necessarily involve actual automobiles or other vehicles, in 'the functional sense. The search of suitcases and other moveable boxes, cartons and containers are “automobile exception” (or Carroll Doctrine) cases, in the analytical sense, even though not involving automobiles or other vehicles, in the functional sense. Waugh v. State, 20 Md. App. 682, 318 A. 2d 204 (1974); People v. McKinnon, 103 Cal. Rptr. 897, 500 P. 2d 1097 (1972); United States v. Valen, 479 F. 2d 467 (3rd Cir. 1973). The distinction was well illustrated by the Supreme Court in Coolidge v. New Hampshire, supra, when in Part II of its opinion it dealt with the search of the same automobile, in the literal and functional sense of the word, under three separate analyses — Part II-A applying a “search incident” analysis to the search of the car, Part II-B applying an “automobile exception” analysis to the search of the car and Part II-C applying a Plain View Doctrine analysis to the search of the car.

Confusion would be avoided if lawyers and courts would remember that what triggers an “automobile exception” analysis is not the presence of an internal combustion engine connected with a set of wheels but rather an argument based upon the conjoining of probable cause and exigent circumstances. A reverting to the older usage of “Carroll Doctrine” as the appropriate label for this recognized exception to the warrant requirement might avoid much of the confusion engendered by the word “automobile’s” having both a functional and an analytical connotation.

In terms then of constitutional significance, it becomes preeminently clear that an inventory search of an automobile is not an “automobile exception” case. The inventory search, by definition, purports to be a mere listing of personal property and not a deliberate search for evidence. The “automobile exception” search is a deliberate search for evidence. An inventory search is not based upon probable cause; an “automobile exception” search must be based upon probable cause to believe that the automobile contains evidence of crime. The inventory search need not be based upon any exigency; the “automobile exception” search is absolutely dependent upon the presence of exigent circumstances.

If an inventory search of an automobile is not an “automobile exception” search, what then is it? Assuming for the moment that the making of an inventory is a legitimate excuse for intruding into the constitutionally protected area of a man’s automobile, it is clear that that entry is a “prior valid intrusion,” one of the two necessary elements to bring into play the Plain View Doctrine. Once there has been a prior valid intrusion, if there is then an inadvertent spotting of evidence of crime in plain view, that evidence may be seized under the Plain View Doctrine. Coolidge v. New Hampshire, supra; Brown v. State, 15 Md. App. 584, 292 A. 2d 762 (1972). A review of inventory searches, therefore, proceeds under a Plain View Doctrine analysis.

Ill

No Probable Cause to Believe Pills in Plain View Were Contraband

Assuming again that the making of an inventory (if bona fide) is a legitimate excuse for intruding into the constitutionally protected area of a man’s automobile, entry into the automobile in pursuit of that purpose would constitute a prior valid intrusion. And there is no question but that the two pills ultimately seized in this case were inadvertently spotted and that they were literally in plain view:

“A. As I said, I was searching for valuable personal property, to keep for the defendant, so nothing would happen to it. There was nothing in the front area of the car. The vehicle had bucket seats. I moved the bucket seat on the passenger side forward, and immediately upon looking into the back seat, on, in plain view, on the back seat —
Mr. Kroop: Object again, to the characterization, Your Honor. Apparently he’s been reading several cases of the Court of Special Appeals.
THE COURT: Maybe he’s heard counsel.
Mr. Kroop: We’ll object to that. Key words are coming out.
THE COURT: Well, just — I can’t object to his using the language the rest of us use. Go ahead.
A. On the back seat of the vehicle I observed two pills.
BY MR. HORVITZ:
Q. And what, if anything, did you do with these pills?
A. I took the pills into my possession and placed them in an envelope at that point.
Q. And —
A. I’m not sure if I placed them in the envelope then or at the station, but at any rate I confiscated the pills at that point.”

It is equally clear that Officer Greisz had no probable cause to believe that the pills were contraband, but nevertheless arbitrarily escalated his effort from the protective listing of personal property to an investigative “fishing expedition” for criminal evidence:

“Q. All right, now, these two pills, you had no idea what they were, did you?
A. No. sir. no idea.
Q. Of course, you told Judge Macgill the reason you went through the vehicle was for this client, the defendant’s protection?
A. Yes, sir, it’s our policy, in the police department.
Q. Right. I mean, you want to protect and secure everything that he had.
A. Yes, sir.
Q. Is that correct? And when you saw these two pills you had no more idea whether they were aspirin or sleeping pills or whatever, isn’t that correct?
A. That’s correct, sir.
Q. All right. Yet you took them out in an envelope for his security? Or did you take them out with the idea that you wanted to test them, to see if they were a prohibited drug?
A. Well, I recovered them, and after bringing them from the car I decided to have them tested.
A. . . . The search was done as an inventory. It just so happened that I viewed the pills.
Q. Oh, I understand that, but you’ve already told us that you took the pills, not for his safekeeping, but for the purpose of trying to obtain evidence to be used against this man in a court of law?
A. Yes, sir.”

It is beyond cavil that a prior valid intrusion will not in and of itself justify an indiscriminate seizure of all items that happen to be visually in plain view, but that probable cause must exist to believe that the items ultimately seized are, indeed, contraband or other evidence of crime. The point was dealt with by the three justices of the Supreme Court in Stanley v. Georgia, 394 U. S. 557, 89 S. Ct. 1243, 22 L.Ed.2d 542 (1969), who reached the Fourth Amendment issue in the case. In that case, Georgia law enforcement officers searched Stanley’s home under a valid warrant authorizing them to search for evidence of illegal bookmaking. In the course of the search, the officers seized reels of film which were ultimately determined to be pornographic. The six-justice majority opinion dealt only with the First Amendment issue, whereunder the Georgia law proscribing the possession of obscene matter in the privacy of a home was held to be unconstitutional. Justices Stewart, Brennan and White concurred, reaching, however, the Fourth Amendment issue. They found the seizure of the reels of film to have been “unwarranted and unconstitutional” because they were not particularly described in the warrant and because, although the reels were literally in plain view, there was no probable cause to believe that they were contraband:

“This is not a case where agents in the course of a lawful search came upon contraband, criminal activity, or criminal evidence in plain view. For the record makes clear that the contents of the films could not be determined by mere inspection." Stanley v. Georgia, 394 U. S. at 571, 22 L.Ed.2d at 553 (concurring opinion by Steward, J.)

An excellent summary of the cases and authorities on this point is found in the opinion of Justice James N. Bloodworth for the Supreme Court of Alabama in Shipman v. State, 282 So. 2d 700. In that case, several individuals were detained by the police because of the complaint of a store owner that they had been acting toward him essentially in an obstreperous manner. As one of the individuals was being accosted by the police, he was observed to transfer an object (clearly .not a weapon) from one part of his person into the top of his boot. JThe object was seized, under a plain view rationale, and dltimately determined to be heroin. The conviction was reversed because there was no probable cause to believe that the object seized, although sighted in plain view, was indeed contraband. The Court held, at 282 So. 2d 704:

“The reason for this rule is apparent. If the rule were otherwise, an officer, acting on mere groundless suspicion, could seize anything and everything belonging to an individual which happened to be in plain view on the prospect that on further investigation some of it might prove to have been stolen or to be contraband. It would open the door to unreasonable confiscation of a person’s property while a minute examination of it is made in an effort to find something criminal. Such a practice would amount to the ‘general exploratory search from one object to another until something incriminating -at last emerges’ which was condemned in Coolidge v. New Hampshire, supra. Ex post facto justification of a seizure made on mere groundless suspicion, is totally contrary to the basic tenets of the Fourth Amendment.
For an item in plain view to be validly seized, the officer must possess some judgment at the time that the object to be seized is contraband and that judgment must be grounded upon probable cause.”

In State v. Elkins, 245 Or. 279, 422 P. 2d 250 (1966), an officer, as in the present case, seized pills which he did not know to be contraband but of which he was suspicious. The court there recognized that “before the officer had the right to seize the implements of a crime committed in his presence . . . he must have reasonable grounds to believe that the article he has discovered is contraband and therefore a crime is being committed.” After a thorough review of the applicable search and seizure law, the Oregon Supreme Court reversed the conviction, concluding:

“The application of the above rules of law to the facts in the present case leaves only one result. 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 evidence was that the officer was acting on suspicion. It is not enough that the officer suspects in good faith, his suspicions must be reasonable.

In United States v. Thomas, 16 U.S.C.M.A. 306, 36 C.M.R. 462 (1966), the Court of Military Appeals reversed a conviction for possession of a bottle of narcotics. The authorities had relied upon a plain view seizure. The court held:

“It is with the seizure of the bottle that we are here concerned, and not with any antecedent search. The Government urges that such was reasonable under the circumstances, but we must disagree. Whether a seizure is reasonable depends upon the existence of probable cause for that action, [citations omitted] There must be facts and circumstances from which the probability of the item’s contraband nature may be inferred — ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ [citations omitted] There is simply no basis shown on this record for any conclusion by Sergeant Lively that the seized bottle contained narcotics, or that accused was under its influence. * * *”

For cases of similar import see Armour v. Totty, 486 S.W.2d 537 (Tenn. 1972); State v. Jackson, 263 La. 849, 269 So. 2d 465 (1972); United States v. Sokolow, 450 F. 2d 324 (5th Cir. 1971); Commonwealth v. Hawkins, 280 N.E.2d 665 (Mass. 1972); Jenkins v. State, 46 Ala. App. 719, 248 So. 2d 758 (1971). The commentators are in unanimous support of the same principle. See Annotation, Search and Seizure Plain View, 29 L.Ed.2d 1067; Comment, Probable Cause to Seize and the Fourth Amendment: An Analysis, 31 Albany L. Rev. 658 (1970); Kuipers, Suspicious Objects, Probable Cause, and the Law of Search and Seizure, 21 Drake L. Rev. 252 (1972); Comment, Search and Seizure: Probable Cause for Seizure, 7 Suffolk U.L.Rev. 184 (1972); and Rintamaki, Plain View Searching, 60 Military L. Rev. 25 (1973).

Even assuming a bona fide inventory and, therefore, a prior valid intrusion, it is clear that there was no probable cause to believe that the two pills here seized, albeit inadvertently spotted in plain view, were contraband or other evidence of crime.

IV

The Ostensible Inventory In This Case

The more damning indictment of the search and seizure presently under review, however, is that we find, as a constitutional fact, that there was not a bona fide inventory.

Our duty to make an independent, reflective constitutional judgment is clear. As Judge (now Chief Judge) Orth said for this Court in Gardner v. State, 10 Md. App. 233, 245, 269 A. 2d 186:

“[I]n determining whether the court made its decision within the required constitutional framework we must do so within the rule that ‘[w]hen constitutional rights turn on the resolution of a factual dispute we are duty bound to make an independent examination of the evidence in the record.’ Brookhart v. Janis, 384 U. S. 1, note 4 at p. 4.”

See also Dillingham v. State, 9 Md. App. 669, 710-715, 267 A. 2d 777 (concurring opinion by Orth, J.). When a constitutional issue is involved, such ostensibly factual questions as whether a confession is voluntary, whether a consent to search is freely given, whether there is probable cause, whether a lineup is impermissibly suggestive, whether a piece of literature is obscene, etc., are ultimate, conclusionary, second-level facts arising out of a series of more physical and concrete first-level facts. Such constitutional facts — or mixed questions of law and fact — are of necessity subject to independent appellate determination. New York Times Co. v. Sullivan, 376 U. S. 254, 285, 84 S. Ct. 710, 11 L.Ed.2d 686, 709 (1964); Fiske v. Kansas, 274 U. S. 380, 385, 47 S. Ct. 655, 71 L. Ed. 1108, 1110-1111; Pennekamp v. Florida, 328 U. S. 331, 335, 66 S. Ct. 1029, 90 L. Ed. 1295, 1297; Stein v. New York, 346 U. S. 156, 181-182, 73 S. Ct. 1077, 97 L. Ed. 1522, 1540; Blackburn v. Alabama, 361 U. S. 199, 205, n. 5, 80 S. Ct. 274, 4 L.Ed.2d 242, 247 (1960); Edwards v. S. Carolina. 372 U. S. 229, 235, 83 S. Ct. 680, 9 L.Ed.2d 697, 702 (1963); Haynes v. Washington, 373 U. S. 503. 515-516, 83 S. Ct. 1336, 10 L.Ed.2d 513, 522 (1963); Jacobellis v. Ohio, 378 U. S. 184, 187-188, 84 S. Ct. 1676, 12 L.Ed.2d 793, 798-799 (1964); Cox v. Louisiana, 379 U. S. 536, 545, n. 8, 85 S. Ct. 453, 13 L.Ed.2d 471 (1965); Bachellar v. Maryland, 397 U. S. 564, 566, 90 S. Ct. 1312, 1313, 25 L.Ed.2d 570, 573 (1970). And see Wagonheim v. Md. State Bd. of Censors, 255 Md. 297, 306, 258 A. 2d 240; Sanza v. Md. State Bd. of Censors, 245 Md. 319, 330, 226 A. 2d 317; Dennis v. Warden, 6 Md. App. 295, 315, 251 A. 2d 909.

That the trial court found as a “fact” that there was a bona fide inventory does not preclude us from making our own independent judgment and it does not limit us to a “clearly erroneous” standard of review. As we said in Walker v. State, 12 Md. App. 684, 694-695, 280 A. 2d 260:

“Where the resolution of a purely factual question is all that is involved, we, of necessity, give great weight to the finding of the hearing judge, and his decision will not be disturbed on appeal unless we find a clear abuse of discretion. [A constitutional decision,] however, be that decision made at a pretrial suppression hearing or while the jury is excused during the course of trial, is ‘a mixed question of law and fact.’ Mulligan v. State, 10 Md. App. 429, 431, n. 1; Barnhart v. State, 5 Md. App. 222, 224. It is, therefore, a situation ‘where a conclusion of law as to a [constitutional] right and a finding of fact are so intermingled as to make it necessary, in order to pass upon the [constitutional] question, to analyze the facts.’ Fiske v. Kansas, supra, 385. We accord ‘an appropriate and substantial effect to [the trial court’s] resolutions of conflicts in evidence as to the occurrence or non-occurrence of factual events and happenings . . . But . . . We cannot be precluded . . . from determining whether the circumstances under which the confession was made were such that its admission in evidence amounts to a denial of due process.’ Haynes v. Washington, supra, 515, 516. What we mean, therefore, when we say that we have the obligation to make an independent, reflective constitutional judgment on the facts whenever a claim of a constitutionally-protected right is involved is that, although we give great weight to the findings of the hearing judge as to specific, first-level facts (such as the time that an interrogation began, whether a meal was or was not served, whether a telephone call was requested, etc.) we must make our own independent judgment as to what to make of those facts; we must, in making that independent judgment, resolve for ourselves the ultimate, second-level fact — the existence or non-existence of [in this case, a bona fide inventory].”

Indeed, in Reagan v. State, 4 Md. App. 590, 244 A. 2d 623, we engaged, of necessity, in constitutional fact-finding in a situation where the same issues were before us as face us now. The trial judge had there found “as a fact” that there had been a bona fide inventory search. Making our own independent, reflective constitutional judgment, we “found” otherwise, at 4 Md. App. 601:

“[The trial judge] found that the search was reasonable under St. Clair v. State, 1 Md. App. 605. We think the instant case is clearly distinguishable from St. Clair, where at the time the inventory was initiated, the police had no reason to suspect that the goods in the car did not belong to the arrestee and the sole purpose in removing the goods from the car was to inventory them in order to protect the presumed owner and the police from charge of loss. We recognized in our holding ‘ * * * the difficulty likely to be encountered in distinguishing a bona fide inventory from a mere subterfuge to search.’ In the circumstances of the instant case, we cannot say that the search of the appellant’s car was a bona fide inventory and therefore reasonable under the holding in St. Clair.

Taking then the first-level facts of “who, what, when and where” as found by the trial judge and making our own independent, reflective judgment as to what to make of those facts — that is, making our own finding of the ultimate, second-level, constitutional fact — we cannot help but conclude that the officer’s resort to an inventory rationale was a case more of investigative opportunism than of genuine solicitude for personal property. The necessity for impounding the car was not remotely demonstrated. The appellant’s car, at the time of arrest, was on the parking lot of the Howard County Courthouse. It was still before noon on a working day. There was no apparent danger to the car or to its contents. The car, in turn, posed no irremediable danger to the flow of traffic. Either the appellant himself or one of the officers, within a few feet and within a few seconds, could have safely parked it, locked it and left it. The officer was asked why he called the tow truck. In view of the obvious and simple alternative of moving the car a few feet into a readily available parking space, the answer strikes us as disingenuous, “It was parked out here in the lane that runs through the Court House parking lot and was obstructing traffic.” It is simply not reasonable to tow a car away to avoid moving it to the curb.

There was no apparent reason why either the impounding or the inventorying was necessary in terms of protecting any personal property that might have been in the vehicle. The appellant himself could have been booked at the nearby stationhouse for the traffic violation and returned to his car well before the afternoon had waned. His sister, alternatively, could have been notified to come and pick it up. To have impounded the car and towed it away, under these circumstances, was a bizarre thing to do, explainable only as a subterfuge to search the car. We cannot credit the officer’s representation that his sole purpose in searching the car before turning it over to the tow truck was to discover “valuable personal property, to keep for the defendant, so nothing would happen to it.” As the officer acknowledged, easier alternatives were readily available and no explanation was offered as to why they might not have sufficed:

“Q. All right, so the answer is the keys were in your possession?
A. Yes, sir, they were.
Q. And it would have been very easily — easy for you to secure the vehicle by closing the windows and locking the doors, isn’t that correct?
A. Yes, sir.
Q. Right. Also very easy for you, if you wanted to, you yourself to drive the car or have a tow truck pick it up, which you did?
A. Yes, sir, that’s correct.
Q. And you could have secured the entire contents of the vehicle and its trunk by merely locking — securing the windows and locking the doors, and keeping the key in safe keeping, isn’t that correct?
A. Yes, sir, it is.”

The search of the locked trunk tended to belie the securing-of-property-against-loss theory:

“Q. Did you look into the trunk of the car?
A. I believe I did, yes, sir.
Q. Uh-huh. The trunk was locked?
A. The trunk was locked.
Q. Could you have gotten into that trunk without the key, without breaking it?
A. No, sir, I could not have.
Q. So whatever was in the trunk was also secured?
A. Yes, sir, it was.”

Curiously, no inventory list was ever turned over to the appellant or produced in court. Apparently none was ever made. In terms of the officer’s attentions, solicitude for personalty was easily cuckolded and lightly forgotten once the more attractive rival of the seizure of potentially incriminating evidence appeared in the field. In the light of such easy inconstancy of purpose, it is difficult to credit significantly the asserted initial commitment. As the officer acknowledged on cross-examination:

“Q. So you really didn’t take it for his safekeeping? Correct? You took it as evidence, isn’t that correct?
A. That’s correct.”

Our finding of the constitutional fact that this was not a bona fide inventory is, of course, fatal to the subsequent seizure. Pigford v. United States, 273 A. 2d 837 (D.C.App. 1971); Reagan v. State, supra. And see Annotation, Lawfulness of “Inventory Search” of Motor Vehicle Impounded by Police, 48 A.L.R.3d 537, at 544:

“An essential requirement to a valid inventory search is that the police must have acted in good faith in conducting the inventory, and must not have used the inventory procedure as a subterfuge for a warrantless search. It has therefore been held that where the conduct of the police was inconsistent with its contention that the search was conducted for inventory purposes, the search was unlawful.”

The situation at bar bears an amazing parallel to that with which we dealt in Kleinbart v. State, 2 Md. App. 183, 234 A. 2d 288. There, as here, the defendant was initially stopped for a traffic violation. There, as here, he was driving his sister’s car. There, as here, he was charged with driving “under the influence.” There, as here, the car and its contents were towed away. There, as here, the car was searched “to protect the property.” There, as here, the searching officer became suspicious about the property as he was checking it out. There, the property turned out to be stolen and the ultimate charge was grand larceny. The issue now before us was precisely the issue facing us in that case:

“The next question before us is whether, under the facts shown in the record of this case, the removal by Trooper Arnold of the property within the car and the trunk for the avowed purpose ‘to protect the property’ constituted an unreasonable search and seizure in violation of the Fourth Amendment.” Id., at 2 Md. App. 194.

In holding that the search of the car and the seizure of its contents were unconstitutional, we there found it significant that the defendant had only been arrested for a traffic violation, for which he was entitled to an immediate hearing or to be released on bond. We found it significant that the vehicle was in the hands of a selected bailee in whom the police had confidence. We found it significant that the police had the keys with which to lock the car. We found it significant that the sister, who owned the car, was not notified to pick it up. We found it significant that the searching officer discontinued his inventory once he found something suspicious. The observations there made by the court, speaking through Judge O’Donnell, at 2 Md. App. 198-200, are remarkably appropriate here:

“The facts upon which the court found in St. Clair that there was no ‘unreasonable’ search and seizure are clearly distinguishable, however, from the facts here in the record before us. Here, each of the Appellants was arrested for misdemeanors committed in Trooper Blazejak’s presence, on which charges they were entitled to an immediate hearing or to be released from custody on giving bond or collateral (see Art. 66V2, Sec. 320 Ann. Code, 1967 Repl. Vol.); the vehicle was towed for storage, to a designated, selected bailee in whose ability to protect the vehicle the police must have had confidence; the car doors would lock — in fact, Trooper Arnold used the keys to lock the vehicle after removing most of its contents; it was parked in a well-lighted area of the service station; no effort was apparently made to contact Mrs. Smallwood, its registered owner, who lived nearby at Landover, in the same county; there is no showing why, if the avowed purpose was to take ‘protective custody’ of the property, it was not removed contemporaneously with the transportation of the Appellants from the scene of the arrests to the Marlboro Post . . . Trooper Arnold searched not only the trunk of the vehicle, but the suitcase in it (a fact inconsistent with ‘protective custody’) and while in the process of removing articles from the vehicle before he transported them to Marlboro ‘to be inventoried,’ suspected that they had been stolen; nor did Trooper Arnold remove all the contents of the vehicle. Corporal Ansell was required to return to the vehicle that evening ‘to finish cleaning it out.’
Upon the facts in the record before us, we cannot conclude that the removal of the property from the vehicle and the search of its trunk and the suitcase therein by Trooper Arnold was reasonable and not in violation of the guarantees of the Fourth Amendment.”

In view of our disposition of the case on the search and seizure issue, it is unnecessary to deal with the two other contentions raised by the appellant.

Judgments reversed.

      . It was developed on cross-examination that “fair” is part of a scale that runs “sure, fair, swaying, wobbling, saggy knees, crawling, and others.” Officer Greisz acknowledged that on a scale of 1 through 7 numerically, “fair” is “second to the top.”

      . A growing body of law is recognizing that a threshold prerequisite to any inventory search of an automobile is a lawful and reasonable impounding of the vehicle, or other exercise of custody over the vehicle, in the first instance. See Annotation, Lawfulness of "Inventory Search" of Motor Vehicle Impounded by Police, 48 A.L.R.3d 537, 544, 551-554, 577; Virgil v. Superior Court of County of Placer, 268 Cal. App. 2d 127, 73 Cal. Rptr. 793 (1968) (holding that an inventory search of a car impounded by the police after its driver had been arrested for reckless driving was unlawful, because police custody of the car was unjustified since no reason appeared why his friends, who were passengers in the car, could not have taken charge of the vehicle and pointing out that the officer did not consult the driver’s wishes); People v. Greenwood, 484 P. 2d 1217 (Colo. 1971); People v. Nagel, 17 Cal.App.3d 492, 95 Cal. Rptr. 129 (1971) (invalidating an inventory search because police custody was neither necessary nor proper where the defendant had been arrested for running a red light and where there was no apparent reason why he could not have driven the vehicle to a nearby place for safekeeping); United States v. Pannell, 256 A. 2d 925 (D.C.App. 19691 (invalidating an inventory search because an impounding was unlawful where, after a driver was arrested for driving without a permit, there was no showing that a car, parked on a lot, was obstructing police operations).


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    LIBERTY MUTUAL INSURANCE COMPANY v. HANNAH STORCH et al.
    [No. 976,
    September Term, 1973.]

      Decided October 14, 1974.

    The cause was argued before Thompson, Gilbert and Menchine, JJ.

      John A. Buchanan, with whom were Sasscer, Clagett, Channing & Bucher on the brief, for appellant.

      Francis L. Young, with whom were Brown & Young on the brief, for appellees.
   Thompson, J.,

delivered the opinion of the Court.

This case reaches this Court under Maryland Rule 1026 g which provides that counsel, with approval of the trial judge, may in appropriate cases file a statement of the case in lieu of the original record. The statement follows:

“Liberty Mutual Insurance Company, as plaintiff, filed a law suit against Hannah Storch, Individually, as surviving tenant by the entirety of M. Leo Storch, Deceased, and Hannah Storch, Personal Representative of the Estate of M. Leo Storch, Deceased.
“This action was brought by Liberty Mutual to recover the sum of $16,245.00 paid by Liberty Mutual to its insureds, Dorothy Nalaboff and Phoebe Barsky, t/a P. D. Craft House. The Declaration alleged that on or about October 24, 1970, Liberty Mutual’s' insureds were tenants in a building owned, controlled, maintained, and managed by the defendant and her decedent; said building being located in Seabrook, Prince George’s County, Maryland. Liberty Mutual’s insureds operated an arts and crafts business on the second floor of the building. The building had been designed and constructed by the deceased, M. Leo Storch.
“On the date mentioned above, a fire occurred resulting in a complete loss to Liberty Mutual’s named insureds of their business stock in trade. The Declaration further recited the following:
‘That said fire started through the negligence and carelessness of the defendants as a result of faulty construction contrary to good practice and contrary to the applicable building construction and fire codes, being Article 11 of the Basic Building Code as issued by the Building Officials Conference of America and applicable to buildings in Prince George’s County, Maryland, and that among other violations of said Basic Building Code, the defendant violated Section 1114.1 in that it did not provide for 6 inches of clearance from the mechanical warm air funace and combustible construction materials; that at the time and place set forth, Dorothy Nalaboff and Phoebe Barsky, t/a P. D. Craft House, were named insureds under policies of insurance issued to them by Liberty Mutual Insurance Company; that pursuant to said policies, the plaintiff, Liberty Mutual Insurance Company, paid to the said Dorothy Nalaboff and Phoebe Barsky t/a P. D. Craft House, the sum of Sixteen Thousand Two Hundred Forty-Five Dollars ($16,245.00) and has a subrogated interest pursuant to its policies of insurance for that amount.)’
“Trial was held before Judge William H. McCullough and a jury in the Circuit Court for Prince George’s County. During trial, Liberty Mutual’s subrogated interest was established as was the amount of the payment by Liberty Mutual to the named insureds.
“At Trial, the written lease between defendant and her decedent as landlord and plaintiff’s subrogor as tenant was received in evidence. Paragraph 12 of that lease agreement provided as follows:
‘12. That all personal property in and upon said premises shall be and remain at the sole risk of the said Tenant, and the said Landlord shall not be liable for any damage or loss to said property upon any acts or negligence of any other persons, nor from any other cause whatsoever . . .’
“At the conclusion of all the evidence, the Defendant moved for a directed verdict based on Paragraph 12 of the lease being an Exculpatory Clause. The Plaintiff argued that said exculpatory clause was not applicable and barred by Article 21, Section 8-211 of the Annotated Code of Maryland. That section was originally enacted as Chapter 124 of the 1964 Laws of Maryland, and Amended by Chapter 349, Section 1 of the 1972 Laws of Maryland, (that section is set forth in full on page two of the Court’s Memorandum Opinion and Order of Court entered on November 7, 1973). The Trial Judge reserved ruling on the Defendants’ Motion for a Directed Verdict and submitted the case to the jury on proper instructions.
“The jury returned a verdict in favor of the plaintiff in the amount sued for. The defendants filed a Memorandum in Support of their Motion for a Directed Verdict, as did the plaintiff.
“Judge McCullough by his Opinion and Order of November 7, 1973, ordered that Judgment Non Obstante Veredicto be entered in favor of the defendants. A copy of his opinion and order is attached hereto as a part hereof.
“It is from that Order that the plaintiff noted a timely appeal to this Court.”

The exculpatory clause as originally enacted by Chapter 124 of The Laws of Maryland 1964 provided as follows:

“Any provision of a lease or other rental agreement whereby a tenant enters into a covenant, agreement or contract, by the use of any words whatsoever, the effect of which is to indemnify the landlord or hold the landlord harmless, or preclude or exonerate the landlord from any or all liability to the tenant, or to any other person, for any injury, loss, damage or liability arising from any omission, fault, negligence or other misconduct of the landlord on or about the leased or rented premises or on or about any elevators, stairways, hallways or other appurtenances used in connection therewith, and not within the exclusive control of the tenant, shall be deemed to be against public policy and void.”

Chapter 349 of The Laws of Maryland 1972 added the following sentence:

“No insurer may claim a right of subrogation by reason of the invalidity of such a provision.”

The trial judge ruled that the 1972 provision, which took effect on January 1, 1973, was retroactive because the act referred to the claim of a right of subrogation and not its existence; and that therefore the date on which suit was filed was controlling in determining the applicability of the section.

The Court of Appeals of Maryland recently had occasion to consider the retroactivity of the 1964 act in Rigger v. Baltimore County, 269 Md. 306, 305 A. 2d 128 (1973) where it held that the original statute did not apply to a lease which was executed prior to the statute’s effective date even though the loss was sustained thereafter. In Rigger the Court carefully reviewed the law as to the retroactive application of a statute insofar as it affected substantive as opposed to procedural rights. It would seem to us that the denial of an insurance company’s right to claim benefit of the substantive statute, where the subrogation was based on the terms of the policy which was issued prior to the effective date of the statute, would be as much substantive as a lease containing an exculpatory clause which was executed prior to the effective date of the statute. The mere wording of the statute in terms of claims of right would not change the statute from one of substance into one of procedure. In other words, the insurance company’s claim is based on its insurance policy which existed prior to the effective date of the statute. Serious constitutional questions would arise if the statute is made retroactive and merely calling the rights procedural would not alleviate the problem. As the Court said in Rigger v. Baltimore County, supra:

“Manifestly, § 40 contains no clear expression of an intent to apply it retrospectively, Unsatisfied Fund v. Bowman; State Farm v. Hearn, Adm'x; Bell v. State; Gutman v. Safe Deposit & Trust Co., all supra. As the New York and Illinois cases strongly suggest, a retroactive application of the statute to the lease might well raise serious constitutional questions. Furthermore, Weiler, supra, lays to rest any notion that because the injury was sustained after the effective date of § 40, the latter is being invoked prospectively rather than retrospectively. The determinative event in this context is the execution of the lease, and not the happening of the accident.” Id. at 311.

We think that the determinative event in the instant case was the execution of the policy and not the date on which suit was filed. For a further discussion of procedural and substantive statutes see Janda v. General Motors, 237 Md. 161, 205 A. 2d 228 (1964) and Beechwood Coal Co. v. Lucas, 215, Md. 248, 137 A. 2d 680 (1958).

Our decision is also supported by the unusual language concerning the effective date of the 1972 law. The statute provided that its effective date would be 12:01 a.m. January 1, 1973 except as provided thereafter. The statute mentioned various times when twenty specific other sections would become effective and then provided in subsection (b) thereof as follows:

“(b) Except as expressly provided to the contrary in this article, transactions validly entered- into before the effective date and the rights, duties, and. interests flowing from them remain valid thereafter and may be terminated, completed, consummated or enforced as required or permitted by any statute amended or repealed by this article as though such repeal or amendment had not occurred.”

Thus it would seem the legislature had not-only failed to express an intent that the specific provision herein involved be retroactive but specifically stated a contrary intent. The. insurance policy was issued and the loss occurred prior to the effective date; the statute specifically provides that the' rights thereunder may be enforced as though the 1972 amendment had not occurred.

Judgment reversed.

Case remanded for entry of a judgment in accordance with this opinion.

Appellees to pay the costs.

      . This section is now covered by Maryland Code, Real Property Article ¡5 8-105.

      . Suit was filed March 9, 1973.


author: Moore, J.,

text:
    URBANA CIVIC ASSOCIATION, INC. et al. v. THE FREDERICK COUNTY BOARD OF COUNTY COMMISSIONERS et al.
    [No. 33,
    September Term, 1974.]

      Decided October 14, 1974.

      The cause was argued before Morton, Moylan and Moore, JJ.

      Herbert D. Morrison, with whom was W. Milnor Roberts on the brief, for appellants.

      Joseph S. Kaufman, with whom were Ralph D. Gastley and David E. Aldridge on the brief, for appellees.
   Moore, J.,

delivered the opinion of the Court.

The single question raised on this appeal is whether the decision of the trial court sustaining a demurrer in a suit for a declaratory judgment was procedurally appropriate.

On July 31, 1973, the Frederick County Board of County Commissioners adopted an ordinance approving an application for a “Planned Unit Development” (P.U.D.) proposed by Leisure Village-Maryland, Inc. in the Urbana region of the County. Appellants, members of the Urbana Civic Association and neighboring property owners, filed a bill of complaint for declaratory relief challenging the passage of the ordinance. They contended that the Planned Unit Development enabling legislation, § 40-23 of the Frederick County Zoning Ordinance, was unconstitutional on a number of grounds: that it was adopted at a closed executive session rather than at a public meeting; that there was no statutory right of appeal from the action of the County Commissioners in approving plans; and that the enabling ordinance exceeded the authority of the Frederick County Commissioners. Finally, they contended that the P.U.D. ordinance amounted to spot zoning and as such was invalid. The appellees-respondents filed a combined demurrer and answer. This demurrer was sustained by Judge Barrick with leave to amend.

The appellants then filed an amended complaint which differed from the first principally by an allegation that the plaintiffs were aggrieved and would suffer financial loss because of the Planned Unit Development. In addition certain parties plaintiff were added and deleted. A demurrer was also interposed to the amended bill and after hearing oral argument “and concession of counsel” on January 11, 1974, Judge McAuliffe sustained the demurrer without leave to amend, detailing his reasons in an oral opinion dictated to the court reporter from the bench.

At the outset of his well-considered opinion, Judge McAuliffe noted that “the general law on this subject is that a demurrer is rarely the appropriate vehicle to challenge the sufficiency of a bill for declaratory relief.” He concluded, however, that there were some cases in which a demurrer was appropriate, such as those in which the facts pleaded, taken as true, “still do not mount up a claim for which relief should be granted” and that the action by the court would be in the nature of a “sua sponte summary judgment.” After consideration and discussion of each of appellant’s contentions, he found them without merit.

The formal order thereafter filed the same day, however, did not dispose of the case by a summary declaratory judgment and made no formal declaration of the rights of the parties, save by reference to the oral opinion. The order was as follows:

“In accordance with the Memorandum and Opinion dictated to the court reporter this date, it is, this 11th day of January, 1974, by the Circuit Court for Frederick County, sitting as a Court of Equity,
ORDERED that the demurrer to the amended Bill of Complaint be and the same is hereby sustained, without leave to amend, and the amended Bill of Complaint is dismissed; with costs to be paid by the Plaintiffs.”

Although the court’s substantive determinations are not before us, we note that in response to the contention that the enabling ordinance was invalid because it was adopted at an executive session the court held that Art. 25, § 5 of the Annotated Code of Maryland which provides that no ordinance shall be finally adopted at an executive session from which the public is excluded, was a “directory statute” and not mandatory. It was also held that the ordinance was valid despite the absence of any statutory right of appeal, citing. Urbana Civic Association v. Urbana Mobile Village, Inc., 260 Md. 458, 272 A. 2d 628 (1971). Furthermore, the court observed that acts by administrative bodies are subject to judicial review, notwithstanding the absence of any statutory right of appeal, “on bills of mandamus, injunction or for declaratory relief to determine whether the action was arbitrary or capricious.” (This determination also answered the appellants’ third contention that the ordinance exceeded the authority of the County Commissioners because it lacked the right of appeal). Finally, the court held that the ordinance did not amount to spot zoning either as written or as applied to this case, but instead embodied relatively recent, but not illegal, concepts of the floating zone or planned unit development.

As stated earlier, the appeal brings up for review none of the court’s substantive decisions but only the narrow question of whether or not the procedure employed of sustaining the demurrer was proper. For the reasons discussed below, we find that it was technical error to sustain the demurrer.

It was held in Schultz v. Kaplan, 189 Md. 402, 407, 56 A. 2d 17 (1947), citing Ryan v. Herbert, 186 Md. 453, 47 A. 2d 360 (1946) that the purpose of the Uniform Declaratory Judgments Act as amended in 1945 was to make declaratory judgment “concurrent with existing remedies and to declare that the existence of another adequate remedy at law or in equity should not preclude a judgment for declaratory relief in cases in which it was appropriate.” The Court of Appeals has held repeatedly when considering demurrers to bills of complaint for declaratory judgment that:

“[D]emurrers rarely should be sustained or bills dismissed without a declaration of the rights of the parties, when declaratory relief is prayed. Md. Committee v. Tawes, 228 Md. 412; Reed v. Pres. of North East, 226 Md. 229; John B. Robeson v. Gardens, 226 Md. 215; Shapiro v. County Comm., 219 Md. 298; Case v. Comptroller, 219 Md. 282.” Myers v. Chief of Fire Bureau, 237 Md. 583, 591, 207 A. 2d 467, 471 (1965); also followed in Garrett County v. Oakland, 249 Md. 400, 240 A. 2d 228 (1968) (Emphasis added.)

The Court of Appeals considered the issue at length in Hunt v. Montgomery County, 248 Md. 403, 237 A. 2d 35 (1968) in an opinion by Chief Judge Hammond. In Hunt a bill for declaratory relief came before the court on demurrer upon the agreement of all parties. The record showed that the demurrer was intended to present to the court the question whether as a matter of law the petitioners were entitled to the declaration they sought and was not intended to test whether the allegations of the petition presented a justiciable controversy. After hearing extensive argument the Chancellor, Judge Clapp, issued a declaration on the issues involved without ruling on the demurrer. When there was a later request that he decide the demurrer he refused. Recalling that the parties had agreed that there was no dispute as to the facts alleged but only as to their legal effect, he added, Hunt, supra at 408:

“I can only say I feel that I have, to date, complied with the decisions of the Court of Appeals on declaratory judgments. I notice in Myers v. Chief of Baltimore County Fire Bureau, 237 Md. 583, the statement, ‘that demurrers rarely should be sustained or bills dismissed without declaring rights of parties.’ And that was the reason that I have suggested in making up the formal decree the statement should be made that had this been an ordinary suit in law or equity, the demurrer should have been sustained because I felt the Bill was legally insufficient and in view of my interpretation of the action of the Council in these ordinances, but that it should further state in view of the fact that this is a petition for declaratory judgment, that the rights of the parties should have been declared in accordance with my opinion as outlined.”

On appeal, the single issue was presented as to whether it was proper to issue a declaratory judgment without ruling on the demurrer. The Court of Appeals held that the trial court had in effect granted a summary declaratory judgment and was justified in doing so. Judge Hammond stated that ordinarily the only place a demurrer has in a declaratory judgment action is to challenge the legal availability of the remedy sought to be used. He cited Shapiro v. County Commissioners, 219 Md. 298, 149 A. 2d 396 (1959) for the proposition that the ultimate ruling on the petitioners’ entitlement to the specific declaration sought is not material when the trial court is considering a demurrer in a declaratory judgment action. The Court also quoted from a succinct statement of the law found in 22 Am.Jur.2d Declaratory Judgments, § 91 (1965):

“Where the plaintiffs pleading sets forth an actual or justiciable controversy, it is not subject to demurrer since it sets forth a cause of action, even though the plaintiff may not be entitled to a favorable declaration on the facts stated in his complaint; that is, in passing on the demurrer, the court is not concerned with the question whether the plaintiff is right in a controversy, but only with whether he is entitled to a declaration of rights with respect to the matters alleged.” (Emphasis added.)

Judge Hammond went on to state that it would have been error for Judge Clapp to have sustained the demurrer since there was a justiciable controversy. Furthermore, no useful purpose would have been served in overruling the demurrer since there was no dispute of fact. A summary declaratory judgment was proper even though no formal motion for summary judgment was made. Myers v. Montgomery Ward & Co., 253 Md. 282, 252 A. 2d 855 (1969). In Myers the Court of Appeals approved the action of the trial court in treating a demurrer as if it had been a motion for summary judgment. Speaking for the Court, Judge Singley observed at 253 Md., p. 289:

“The court below, in response to a motion made by Myers, filed a ‘statement of the grounds for its decision’ as required by Rule 18 c. It is quite apparent, although the court did not so state in its memorandum, that the demurrer was treated as if it had been a motion for summary judgment filed under Rule 610, since the court addressed itself to each of the alternative legal theories advanced by the declaration. A motion for summary judgment can be made by a party at any time in a proceeding, Rule 610 a 1; Cox v. Sandler’s, Inc., 209 Md. 193, 120 A. 2d 674 (1956), when it appears that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. A court may enter summary judgment of its own motion, Rule 610 d 1; Hunt v. Montgomery County, 248 Md. 403, 237 A. 2d 35 (1968), and the granting of summary judgment on a motion which is defective in form is not reversible error if there is no genuine dispute as to any material fact, Fletcher v. Flournoy, 198 Md. 53, 81 A. 2d 232 (1951).”

The teaching of Hunt, supra, is that demurrers in declaratory judgment actions are permissible for a very limited purpose. They are proper if, for example, the plaintiffs do not have standing to bring the action or if there is no controversy which is justiciable. There is no allegation in this case that the plaintiffs below presented no justiciable controversy. Furthermore, the defect of parties in the original bill was cured after Judge Barrick sustained the first demurrer with leave to amend. The second demurrer was sustained because, in the opinion of Judge McAuliffe the plaintiffs-appellants were not entitled as a matter of law to the declaration which they sought, accepting as true the facts well pleaded. We conclude that the written order of the judge should not have sustained the demurrer and dismissed the complaint but rather should have granted a summary declaratory judgment for the defendants-appellees including written declarations concerning the matters for which declaratory relief was sought.

The distinction between the sustaining of a demurrer and the granting of summary judgment is not semantic. There is cogent reason for insisting that the correct technical procedure be followed because the plaintiff is, under the Uniform Declaratory Judgments Act, entitled to a judicial declaration of his rights if the controversy which he alleges is justiciable.

Appellees contend that the trial court sustained the demurrer “in the form of a summary declaratory judgment” because the oral opinion noted that its actions could be considered as either a granting of the demurrer or as a sua sponte summary judgment. This ignores, however, the fact that the signed order did not mention summary judgment and, more importantly, that there was no written decree or order declaring the rights of the parties. Compare, Myers v. Montgomery Ward & Co., supra.

The necessity for such a written declaration has recently been emphasized by the Court of Appeals in Logan v. Town of Somerset, 271 Md. 42, 314 A. 2d 436 (1974). The suit involved a bill for declaratory and injunctive relief in connection with the construction, use, and operation of a municipal swimming pool and came before the trial court on cross motions for summary judgment. The opinion of Judge Barnes states, in part, that the trial judge on August 24, 1972 “after hearing arguments and considering trial memoranda, delivered a comprehensive oral opinion from the Bench, giving his opinion on the various questions raised by the seven ‘counts’ of the amended bill of complaint, the answer, and the stipulated facts.” At the conclusion of the oral opinion the court indicated its intention, in the event of an appeal, to “edit the transcript” arid to make “such additions as may be required by any inadvertent omissions.” Illness intervened, however, and on April 18, 1973 the court signed the decree appealed from which read:

“ORDERED, that the amended Bill of Complaint for injunctive, declaratory and other relief be and the same is hereby dismissed in accordance with the reasoning set forth in the Memorandum Opinion of this Court filed herein.”

The Court of Appeals modified the decree of the Chancellor, striking out the provision for dismissal of the bill and making additions declaring the rights of the parties. The Court stated:

We have concluded that the chancellor should have rendered declarations in regard to the matters for which declaratory relief was sought, rather than obliquely incorporating his opinion on these questions into the preliminary recitation of the decree and then dismissing the amended bill of complaint. Since we are, however, of the opinion that inasmuch as the facts are not in dispute-being stipulated — and further that Judge Moore’s conclusions given in his oral opinion on the various matters for which declaratory relief was sought are correct, we will formulate the appropriate declarations in this opinion, modify the decree of April 18, 1973, by striking out the dismissal of the bill of complaint and substituting the declarations set forth in this opinion in lieu of that dismissal, and affirm the decree as modified.” 271 Md. at 45-46.

Because appellants do not challenge on this appeal the substantive adjudications of the lower court, we may not formulate the declarations for the trial court as did the Court of Appeals in Logan. Indeed, it must be recognized that such action on the part of an appellate court would be taken only in the exceptional circumstances there presented. We instead remand the case to the trial court for a modification of the decree so as to order a summary declaratory judgment for the defendants and to incorporate a declaration in accordance with the court’s oral opinion. This remand is for that limited purpose. Judge McAuliffe did not hold an evidentiary hearing since he concluded that the facts alleged in the Bill of Complaint, even accepted as true, would not legally support the declaration prayed by the plaintiffs. There being no factual dispute to resolve, to conduct further proceedings upon remand would serve no useful purpose.

Cause remanded without affirmance or reversal for the entry of a modified decree in accordance with this opinion and the oral opinion of the trial court on January 11, 197J.; costs to be divided between appellants and appellees.

      . In addition to the extended lapse of time between the date of the oral opinion and the entry of the written order, occasioned by illness, at the time of the decision by the Court of Appeals in Logan, the trial judge had been appointed as an Associate Judge of this Court.


author: Gilbert, J.,

text:
    MURTICE MATTHEWS a/k/a Ernestine Brown v. STATE OF MARYLAND
    [No. 42,
    September Term, 1974.]

      Decided October 14, 1974.

    The cause was argued before Orth, C. J., and Powers and Gilbert, JJ.

      Allan P. Feigelson, Assigned Public Defender, with whom were Powers & Feigelson on the brief, for appellant.

      George A. Eichhom, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Harry A. E. Taylor, Assistant Attorney General, Milton B. Allen, State’s Attorney for Baltimore City and Sandra O’Connor, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

This appeal is primarily concerned with the duty of a trial judge to reveal to the parties that a witness, in an aside, related to the judge certain information exculpatory to the accused, and then testified to the contrary.

Murtice Matthews, a self-confessed prostitute, was charged with the robbery with a dangerous and deadly weapon of Willie Reaves. At a jury trial in the Criminal Court of Baltimore, Reaves testified that at about 9:30 P.M. on November 14, 1972, he was waiting in his automobile at the intersection of Pressman Street and Pennsylvania Avenue for a traffic light to change. Suddenly, a woman, unknown to Reaves, entered his vehicle and asked him if he “wanted to do any business.” According to Reaves he did not comprehend what was meant by that remark, but he, nevertheless, answered in the negative. Thereupon, the woman, Mrs. Matthews, placed a knife against Reaves’s throat and instructed him to turn over his money to her. Reaves stated that he took his wallet, containing $21.46, from his pocket and surrendered it to Mrs Matthews. He was then ordered to drive his automobile, and while doing so he saw a police car. Reaves drove his vehicle in such a manner as to touch that of the police. He alighted and informed the police officer of the robbery. The officer went to the driver’s side of the Reaves vehicle where the left front door was open and started to conduct a search. Finding nothing on the driver’s side, the officer walked around to the passenger side. Mrs. Matthews, who had remained seated in the vehicle, then ran from the car. A short time later she was apprehended. There is testimony that Reaves’s wallet was found on Mrs. Matthews. Money was found in the wallet, but the record is unclear whether the $21.46 was the only money found on her person when she was searched. There was further testimony that a penknife, which was closed, was found under the passenger side of the front seat.

Mrs. Matthews tells a different version of the incident. She states that she was plying her trade on the night of the incident, and that Reaves was a regular customer. Mrs. Matthews told the jury that she met Reaves every Friday night, for the preceeding four months, at the corner of Pressman Street and Pennsylvania Avenue. She would then go with him to his house or to her sister’s residence for the purpose of engaging in sexual relations. On the night of the incident, giving rise to the charges against her, she was late for the assignation. When she finally entered Reaves’s car she said, “Are you ready?” Reaves stated that he was, and they went to his house where he paid her $35.00 for her sexual services. Mrs. Matthews further testified that Reaves, after completion of the sex act, desired further intercourse. When she refused to submit to his wishes unless she was remunerated, he became angry, and an argument ensued. Mrs. Matthews started to leave, but Reaves told her that he would drive her to her home. During the ride Reaves asked her to hold the knife and his wallet. They stopped at a fish store and Reaves inquired as to whether Mrs. Matthews was hungry. She said that she was not. Reaves, however, entered the store, stayed for “about fifteen minutes” and then reentered the car. A police car approached, and Reaves got out of his car and talked to the officer. Mrs. Matthews said that she overheard Reaves say that he had been robbed by her, and for that reason she ran.

The jury obviously attached greater credibility to the testimony of Reaves, who thrice — twice during the case in chief and once during the rebuttal — denied knowing Mrs. Matthews or having ever seen her prior to the moment she entered his car on the night of the incident, because they found Mrs. Matthews guilty. Sentencing was deferred until November 13, 1973, approximately one month after trial. At the time sentence was imposed the trial judge made the following significant remarks:

. . The one thing in your favor is the fact that the prosecuting witness, Mr. Reaves, was a very reluctant witness for obvious reasons, and he told me either in Court or when I was upbraiding him for not coming back to Court to testify, he said he did not want to prosecute you. He had known you previously, and he was not in any fear that you would stick the knife in him. He told me at the bench, I think, or I know he didn't tell you, he told me. I believe I called him up to the bench after the first day when he had been late, and I let the jury go. I said, ‘Mr. Reaves, I want you to be here tomorrow morning without fail,’ and then he told me, ‘Well, I wasn’t really worried about it. She held the knife at me, but I didn’t think she was going to cut me,’ and indicated he did not want to prosecute. That is in Miss Matthews’ favor.” (Emphasis supplied).

We agree that Reaves’s remarks to the trial judge are in Mrs. Matthews’s favor, but we do so in a different context. Apparent on the face of the judge’s above-quoted statement are two clear inferences, (1) Reaves was lying when he informed the judge that he had known Mrs. Matthews previously or (2) Reaves committed perjury in his testimony during the course of the trial. In either event we think the judge was duty-bound to reveal to the State and the accused, out of the presence of the jury, that the witness had told the judge facts that were diametrically opposite to those to which the witness testified. The disclosure by the judge should have been made prior to the conclusion of the evidence, and preferably prior to the conclusion of the witness’s testimony.

In 48 C.J.S. Judges § 50 (1947) it is said:

“A judge has the power and duty to take proper action to promote justice. . . .”

Also,

“... Where a trial judge is convinced that a witness is testifying falsely on a material matter, he may order an investigation. ..

In 47 Am.Jur.2d Judges § 21 (1969) it is stated in a different manner. That section reads:

“The powers of a judge are those that are conferred upon him by the constitution and by statute and those that are inherent in his office. The duties of the office of judge include all those that fairly lie within its scope, those that are essential to the accomplishment of the main purposes for which the office was created, and those that, although incidental and collateral, are germane to or serve to promote or benefit the accomplishment of the principal purposes. All such duties are official, and the incumbent is obliged to perform them.” (Footnote omitted).

The American Bar Association, Standards for Criminal Justice, “The Function of the Trial Judge” § 1.1(a) (1972), declares:

“The trial judge has the responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice. The adversary nature of the proceedings does not relieve the trial judge of the obligation of raising on his own initiative, at all appropriate times and in an appropriate manner, matters which may significantly promote a just determination of the trial. The only purpose of a criminal trial is to determine whether the prosecution has established the guilt of the accused as required by law, and the trial judge should not allow the proceedings to be used for any other purpose.” (Emphasis supplied).

The obvious issue before the jury was the credibility of Reaves as against that of the appellant, who now feels that she has been convicted on testimony that is “gloriously perjured.” Had the judge advised the parties of the disparity between Reaves’s unsworn remarks to the judge and the sworn testimony of Reaves, counsel could have inquired by examination as to which of Reaves’s two versions was truthful. The jury would have had the benefit, in assessing credibility, of the inculpatory and exculpatory statements. It might well be that they would have believed Reaves’s sworn testimony rather than what he told the judge at the bench. On the other hand, the conflict in Reaves’s two separate and distinct versions may have led the jury to conclude that Reaves was not credible. In short, they might have followed the legal maxim, Falsus in uno, falsus in omnibus, and completely rejected Reaves’s narratives.

We reiterate what we said in Little v. Duncan, 14 Md. App. 8, 15, 284 A. 2d 641 (1971) that:

“... [I]t [is] incumbent upon the trial judge to take steps to assure a fair and impartial trial to the participants in the litigation.”

See also Fryson v. State, 17 Md. App. 320, 301 A. 2d 211 (1973) and Ferry v. Cicero, 12 Md. App. 502, 280 A. 2d 37 (1971).

It may well be that the trial judge informed the parties of Reaves’s inconsistent statement, but it is not so stated on the record. We, therefore, are obliged to hold that Mrs. Matthews was denied the fair and impartial trial to which she is entitled.

Because this case must be retried, if the State so elects, we deem it advisable to comment on another issue posed to this Court by Mrs. Matthews, i.e., the alleged denial of a speedy trial. The principal thrust of appellant’s argument relative to the denial of a speedy trial is directed toward the trial judge’s alleged invocation of the “Demand-Waiver” doctrine. Our review of the record, however, fails to support appellant’s position. The record reveals that Mrs. Matthews was arrested, for the instant offense, on November 14, 1972. She was released on bail December 6, 1972, but failed to appear in the Criminal Court on March 5, 1973. The bail bondsman surrendered Mrs. Matthews in open court on March 12, 1973. It appears from the record that Mrs. Matthews was on bail under another name at the same time that she was bailed in the instant offense. Her excuse for non-attendance on March 5, 1973 was that, “I didn’t get a copy. . . . Plus I was already in jail. They knew where I was at.” Presumably, the sheriff could not notify Mrs. Matthews of the March 5, 1973 hearing date because she was in the Baltimore City Jail under an alias. On April 30, 1973 Mrs. Matthews filed a pro se motion for a speedy trial. Subsequently, counsel filed a similar motion on August 30, 1973, two days after the scheduled trial date. The trial that was set for August 28, 1973 was postponed at the request of the State “for the reason that a prosecuting witness would be out of town on that date.” In any event the case was tried within seven (7) months of appellant’s pro se motion, and within twelve (12) months of her arrest. We do not think a delay of twelve months, under the circumstances of this case, reaches constitutional dimensions. We pointed out in State v. Dubose, 17 Md. App. 292, 301 A. 2d 32 (1973) where the delay is not of constitutional dimension, then “under the authority of Barker [v. Wingo, 407 U. S. 514, 92 S. Ct. 2182, 33 L.Ed.2d 101 (1972)] ‘there is no necessity for inquiry into the other factors that go into the balance.’ 407 U. S. at 530.”

Even if we assume, arguendo, that the delay in the instant case crossed the threshold of constitutional dimensions, we would still conclude, on the basis of 6ur independent constitutionally mandated review of the record, that Mrs. Matthews’s Sixth Amendment right to a speedy trial has not been abridged.

Four months of the delay is directly attributable to the confusion occasioned by Mrs. Matthews’s prior arrest and use of an alias. Two and one-half months of the delay was caused by the absence of a prosecuting witness and is, at most, a “neutral” reason under Barker v. Wingo, supra. At least one-half month was due to the appellant’s discovery motion. That time is also chargeable to appellant. The remaining five month portion of the delay is chargeable in part to the State. Five months is not, as we see it, so substantial as to require the invocation of constitutional sanction in the form of dismissal of the indictment.

The argument made to the trial judge as to why he should dismiss the indictment for want of a speedy trial was limited to the allegation that the delay prejudiced Mrs. Matthews. The “prejudice” to which appellant alluded was that she was denied the possibility of parole because of the pending charges. As we read Barker v. Wingo, supra, the “prejudice” to which the Supreme Court refers is prejudice to the defense in the form of: (1) oppressive pretrial incarceration; causing (2) excessive anxiety and concern to the accused; and (3) impairment of the defense of the case, which includes such matters as lost witnesses, lost records and documents, and dimming memories. See State v. Jones, 18 Md. App. 11, 305 A. 2d 177 (1973). Although courts have been cautioned not to “overlook the possible impact pending charges might have on . . . prospects, for parole and meaningful rehabilitation”, Moore v. Arizona, 414 U. S. 25, 94 S. Ct. 188, 38 L.Ed.2d 183 (1973), there is nothing in the record to demonstrate that Mrs. Matthews would have been paroled • even if the instant case had not been pending. Her “record” prior to this case consisted of three “soliciting” offenses in addition to shoplifting and narcotics violations. We think appellant’s motion to dismiss for lack of a speedy trial was properly denied.

In view of the disposition made in this appeal, it is unnecessary for us to consider the appellant’s third contention.

Judgment reversed.

Case remanded for a new trial.

      . The appellant has also been known by the name of Ernestine Brown, a factor that may have contributed to the delay in bringing her case to trial.

      . Horace, 65-8 B.C., from Odes, bk. Ill, ode XI, 1. 35.

      . We observe from the record that Reaves was, at the time of the trial, married and the father of two children. A public recitation of his previous relationship, if any, with the appellant could have been most embarrassing to him.

      . “There cannot be anything of greater consequence, than to keep the streams of justice clear and pure. ...” Lord Hardwicke, L.C., Roach v. Garvan, 2 Atk. 469 (1742).

      . Appellant’s motion was filed in letter form. The return address indicates she was then confined in the Maryland Correctional Institution for Women, Jessup, Maryland. Her confinement in Jessup was the result of a conviction on March 22,1973 for “soliciting”.

      . The four factors are: (1) length of delay; (2) reason for the delay; (3) prejudice to the accused; and (4) waiver by the accused.