MD: State failed to show search of bag was required rather than its patdown

While a gym bag may have been subject to a Terry patdown for a weapon based on the defendant’s conduct, it was incumbent on the state to produce it and show why a search of the bag was necessary instead. McDowell v. State, 407 Md. 327, 965 A.2d 877 (2009), rev’g McDowell v. State, 179 Md. App. 666, 947 A.2d 582 (2008):

Having concluded that Trooper Gussoni was justified in examining the gym bag to determine whether it contained a weapon, we now must determine whether the method he used to make that determination was, under the circumstances, a permissible one — whether he was authorized to open the bag, or demand that McDowell do so, so that he could view its contents, without articulating why a pat-down of the bag would not have sufficed to achieve his purpose.

So far as we can tell, this issue has arisen before in only two reported cases, both in the Federal system. In United States v. Vaughan, 718 F.2d 332 (9th Cir. 1983), the police stopped a car containing three men. The car was stopped because there were arrest warrants outstanding for two of the men. When the car was stopped, the third man, Vaughan, exited the vehicle carrying a soft vinyl briefcase and started to walk away. The police had no idea who Vaughan was and had no reason to suspect that he was or had been engaged in any criminal activity. Nonetheless, they brought him back, took the briefcase, and handcuffed him, all of which the court found permissible under Michigan v. Summers, 452 U.S. 692, 101 S. Ct. 2587, 69 L. Ed.2d 340 (1981). An officer then opened the briefcase and found in it some documents that were later referenced in an affidavit to support a search warrant for a hard cover briefcase and a suitcase also found in the car. The issue was the validity of the warrant, which hinged on the validity of the search of Vaughan’s vinyl briefcase. Although the court agreed that the police had the right to detain Vaughan and frisk him for weapons, it held that they had no right to open the vinyl brief case: “The briefcase was soft and thin. Any weapons could have been felt through the cover. Thus, the officers had no reason to open it to protect their safety.” Id. at 335.