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Frosh urges Supreme Court not to review search after DUI arrest

Police have 'reasonable suspicion,' attorney general says

Maryland Attorney General Brian E. Frosh. (Maximilian Franz/The Daily Record)

Maryland Attorney General Brian E. Frosh. (Maximilian Franz/The Daily Record)

ANNAPOLIS – Police may search without a warrant the cars of drivers they arrest on drunken-driving charges based on the reasonable suspicion that open bottles or cans might be found inside, Maryland’s attorney general told the Supreme Court on Friday.

“Because of the close temporal connection between alcohol and the operation of the car in arrests for drunk driving, courts have held that evidence of the offense of arrest may be found in the vehicle, and therefore a search of the vehicle is permitted based on the offense itself,” Attorney General Brian E. Frosh wrote in a brief to the high court urging the justices not to hear Efrain Taylor’s appeal.

Taylor’s roadside arrest in Cambridge on suspicion of driving under the influence of alcohol in 2013 was shortly followed by a search of his vehicle in which police found cocaine in the front-seat armrest.

Maryland Public Defender Paul B. DeWolfe has sought Supreme Court review of Taylor’s conviction, saying the officers’ warrantless search of the vehicle violated his constitutional Fourth Amendment right against unreasonable searches.

Maryland’s top court upheld the conviction last May. The Court of Appeals ruled that an arrest for suspected drunken driving generally provides officers with “reason to believe” that open bottles might be found in the vehicles’ passenger compartments, which the judges said is all the police need to conduct a warrantless search incident to the arrest.

Once a search is deemed valid, any evidence of criminality found in the vehicle will generally be admissible in court, under Supreme Court precedent.

In pressing Taylor’s request for Supreme Court review, DeWolfe stated in papers filed with the justices in October that the “reason to believe” standard provides individuals arrested on suspicion of drunken driving with insufficient protection against unreasonable searches. To conduct a constitutional search, police need at least “reasonable suspicion” based on “more than the arresting officer’s unquantified experience” that examining the vehicle’s interior will uncover evidence related to the suspected offense, in this case drunken driving, DeWolfe wrote.

Frosh responded Friday that the justices should let the Court of Appeals decision stand without review because “reasonable to believe” is the legal equivalent of “reasonable suspicion” under Supreme Court jurisprudence, as interpreted by lower courts, including the Maryland Court of Appeals.

But Maryland’s top court — though upholding the police search – said in its ruling that the Supreme Court has fomented confusion in its past decisions by using the phrases “reasonable articulable suspicion” and “reasonable to believe” in describing when police can conduct a warrantless search.

“Ultimately, the Supreme Court may need to clarify what it meant and, given the vast number of traffic stops that occur every day throughout the country, we hope that it will do so,” Judge Alan M. Wilner wrote for the Court of Appeals.

The Supreme Court has not said when it will vote on whether to hear Taylor’s appeal. The case is docketed at the Supreme Court as Efrain Taylor v. State of Maryland, No. 16-467.

Frosh’s brief is cosigned by Assistant Attorneys General Carrie J. Williams and Benjamin A. Harris. Williams, who directs the attorney general’s criminal appeals division, is counsel of record in the case.

DeWolfe’s brief is co-signed by Assistant Maryland Public Defender Daniel Kobrin, Taylor’s counsel of record at the Supreme Court.

Cambridge police officer Chad Mothersell testified that he pulled Taylor over at 1 a.m. on March 1, 2013, after seeing him speed and fail to stop at a stop sign. Taylor’s breath smelled of alcohol, his speech was slurred, his eyes were bloodshot and glassy, he failed a sobriety test and he said he had been at a local bar, Mothersell said in explaining his decision to make the arrest.

With Taylor in the backseat of Mothersell’s police car, another officer searched Taylor’s vehicle and found the cocaine.

Taylor was subsequently convicted in Dorchester County Circuit Court of possession with intent to distribute cocaine and sentenced in July 2014 to 40 years in prison, with 20 years suspended.

The intermediate Court of Special Appeals upheld the conviction in a reported opinion in August 2015. The Court of Appeals rendered its decision in Efrain Taylor v. State of Maryland, No. 75, September Term 2015.

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