Borges v. State

Tyron Devon Borges v. State of Maryland, No. 134, Sept. Term, 2023.
Opinion filed on August 1, 2024, by Wells, C.J.

CRIMINAL LAW – SEARCH, SEIZURE, AND ARREST – IN GENERAL

Under Chimel v. California, 395 U.S. 752 (1969), a search incident to arrest allows the
police to search the person of the arrestee and any area within his immediate control to
protect themselves from danger and to prevent the destruction or concealment of evidence.
Here, the officers searched clothing within appellant’s reach, lunge, or grasp for their own
safety because they were executing an arrest warrant for first degree assault – a violent
crime.

CRIMINAL LAW – SEARCH, SEIZURE, AND ARREST – IN GENERAL

Chimel and its progeny do not establish a definitive distance in which the police are
permitted to search. Rather, the searchable area is that within which the arrestee might
reach as “an extension of the body.” In this instance the appellant was arrested ten feet
away from where a firearm was located.

CRIMINAL LAW – SEARCH, SEIZURE, AND ARREST – SUBJECTIVE OR
OBJECTIVE TEST; OFFICER’S MOTIVE OR INTENT

The reasonableness of a Chimel search does not depend on a police officer’s subjective
motivations. Rather, the inquiry is objective, and determined by asking whether a
reasonable officer in those circumstances would have acted in a similar manner. In this
case, for officer safety, it was reasonable for a police officer to have searched appellant’s
clothing because the police were arresting appellant on a warrant for a violent crime.
Circuit Court for Prince George’s County
Case No: CT221299X
REPORTED

IN THE APPELLATE COURT

OF MARYLAND

No. 134

September Term, 2023
______________________________________

TYRON DEVON BORGES

v.

STATE OF MARYLAND
______________________________________

Wells, C.J.,
Leahy,
Eyler, Deborah S.,
(Senior Judge, Specially Assigned),

JJ.
______________________________________

Opinion by Wells, C.J.
______________________________________

Filed: August 1, 2024

Pursuant to the Maryland Uniform Electronic Legal
Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.

2024.08.01
15:00:44
-04'00'

Gregory Hilton, Clerk
Appellant Tyron Devon Borges (“Borges”) was asleep in his grandmother’s

bedroom when police entered her apartment to execute an arrest warrant against him for

first- and second-degree assault. After placing him under arrest, a police officer picked up

clothes from a nightstand to dress Borges. When the officer did so, he felt something heavy

inside a jacket pocket. The officer searched the jacket and recovered a handgun. Borges

was arrested and charged with possession of a regulated firearm after being convicted of a

disqualifying crime and unlawful possession of ammunition.

Prior to trial, Borges moved to suppress the firearm, but the court denied his motion.

Later, Borges entered a conditional guilty plea to preserve his right to challenge the

suppression court’s decision. The court sentenced him to five years’ imprisonment with all

but one year suspended, credit for time served, and five years of supervised probation.

Borges timely appealed and asks whether the suppression court erred in denying Borges’

motion to suppress evidence. For the reasons that follow, we affirm the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts were adduced at the suppression hearing. On March 30, 2022,

an arrest warrant was issued for Borges for first- and second-degree assault, for allegedly

physically assaulting his then-girlfriend and for malicious destruction of property. On the

morning of April 7, 2022, at around 7:00 a.m., several Prince George’s County deputies

set out to arrest Borges. Borges was staying at his grandmother’s apartment with his sister

at the time. When the deputies arrived, Borges’ sister let them into the apartment and

directed them to the grandmother’s bedroom where Borges was sleeping. Three deputies

entered the bedroom, Deputy Sheriff Giovanni Romero (“Romero”), Sergeant Romanchick
(“Romanchick”), and Deputy Sheriff Paul Perriello (“Perriello”). Deputy Sheriff Materka

(“Materka”) stood in the doorway.

Romero entered first and walked toward the bed, where Borges lay. The deputies

instructed Borges to show his hands, get up, and stand next to the bed. Borges cooperated

and was handcuffed. Perriello went to the other side of the bed from where Borges was

standing and switched on the lamp located on the nightstand. The nightstand nearly touched

the side of the bed. The deputies asked Borges about clothing because he was clad only in

a t-shirt and long johns, and it was cold and rainy outside. Borges motioned his head toward

the doorway and said to Perriello, “I’ve got pants over there[,]” and “I got stuff over there.”

A pile of men’s clothing was on the nightstand. Perriello asked Borges “Is this your stuff?”

Borges said “no.” Perriello lifted the clothes from the nightstand. As Perriello later

explained at the suppression hearing, because Borges was asleep in his grandmother’s

room, he “naturally went to the men’s clothes” and assumed they were Borges’.

According to Perriello, as soon as he picked up the jacket and the other clothes, he

felt something “heavy.” He then set the jacket on the bed and searched it, finding a firearm

inside the pocket. The deputies testified they check the pockets of any clothing they put on

an arrestee to ensure there are no items that are prohibited from transporting with him to

the correctional facility and to ensure officer safety.

While Perriello searched the clothing, Romero and Borges were about ten feet away

from him. Borges did not move, reach for, or ask for the clothing. Eventually, the officers

dressed Borges. Romanchick and Materka escorted Borges to the living room. Later, the

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police charged Borges with possession of a regulated firearm after having been convicted

of a disqualifying crime and unlawful possession of ammunition.

Before trial, Borges moved to suppress the firearm found in his jacket and the court

convened a hearing. The State, relying on Chimel v. California, 395 U.S. 752 (1969),

argued that the deputies did not exceed the scope of the original arrest warrant because the

clothing where the police found the firearm was within Borges’ immediate control. Borges

conceded Chimel’s application but argued there was no legal basis to search beyond

Borges’ wingspan. He asserted that the gun was on the other side of the bed, ten feet away,

and not within arm’s reach. Additionally, Borges objected to wearing the clothes they tried

to dress him in, stating it was a “search in search of a justification,” there is no good

intentions justification to the warrant requirement, and claiming it was cold outside does

not establish probable cause to search. Further, Borges argued no other exception to the

warrant requirement, including the plain view doctrine, applied, and nothing about the

circumstances could have led a reasonable officer to believe they were in danger.

After hearing testimony from the police officers and counsels’ arguments the court

denied Borges’ suppression motion. The court denied the motion, saying:

I find that the arrest warrant was a legal arrest warrant. That when the officers
arrived, the door was opened by a family member of the Defendant. She
directed the officers to a bedroom and the testimony is that she said that that
was her grandmother’s bedroom, that he was in there.

The Court notes that when the officers entered into the bedroom that the
Defendant was there, lying in the bed. He was compliant, he showed his
hands, he got out of the bed. He was shortly or immediately placed in
handcuffs.

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The officer testified that it was cold and rainy that night, they attempted to
help him dress, as he was wearing night clothes. Officer Romero stated that
Officer Perriello removed the clothing from the nightstand, put the clothing
on the bed and at that time found a handgun in the clothing.

The Court notes that the nightstand was in close proximity of the bed, nearly
touching the side of the bed. The Court could observe that the top drawer was
open, I don’t find that the officers opened a closed container and searched
for the clothes. The clothes were draped over the top drawer and you could
see clearly that the clothing was removed from the top drawer of the
nightstand, outside of the nightstand, onto the bed.

Officer Perriello noted that it was clearly male clothing and knew they were
in the grandmother’s bedroom, this is clearly identified as male clothing. And
when he lifted up the jacket, it was heavy. As a result of that he put it on the
bed and then began to search, for officer safety, before they put the clothing
on him.

The Court doesn’t find that that was any unreasonable search and that they
had effectuated an arrest. It was—the conditions outside warranted him not
being—well, they could have just taken him outside with no shoes, no socks,
in his underclothing, but were attempting to provide him with clothing.
Again, the clothing was there in plain view, close proximity, almost touching
the bed, on top of the nightstand.

I find it reasonable. When the officer lifted up the jacket, it felt heavy, put it
on the bed, he searched and then found the gun and eventually some
contraband. I don’t find that the search was unreasonable, I don’t find that it
was unlawful.

The case moved forward to trial. However, Borges pleaded guilty to the charges in

order to reserve his right to appeal the suppression court’s decision. He was sentenced to

five years’ imprisonment with all but one year suspended, with credit for 271 days served,

and five years of supervised probation. This timely appeal followed.

We will provide additional facts in our analysis when necessary.

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DISCUSSION

I. Standard of Review

When reviewing a circuit court’s denial of a motion to suppress evidence, we are

“limited to the record developed at the suppression hearing.” Pacheco v. State, 465 Md.

311, 319 (2019) (citing Moats v. State, 455 Md. 682, 694 (2017)). We assess the record

and view the evidence “presented at the [suppression] hearing, along with any reasonable

inferences drawable therefrom, in a light most favorable to the prevailing party.” Davis v.

State, 426 Md. 211, 219 (2012). “We accept the suppression court’s first-level findings

unless they are shown to be clearly erroneous.” Brown v. State, 452 Md. 196, 208 (2017).

We review de novo, however, and give no deference “to the question of whether, based on

the facts, the trial court’s decision was in accordance with the law.” Seal v. State, 447 Md.

64, 70 (2016); see also Norman v. State, 452 Md. 373, 386 (2017). Where a party raises a

constitutional challenge, “we must make an independent constitutional evaluation by

reviewing the relevant law and applying it to the unique facts and circumstances of the

case.” State v. Johnson, 458 Md. 519, 532-33 (2018) (quotation marks and citations

omitted).

II. The Court Did Not Err In Denying the Motion to Suppress

A. Parties’ Contentions

Borges contends the warrantless search of his clothing, resulting in the discovery of

the firearm, was unconstitutional and not within one of the narrow exceptions to the warrant

requirement. Specifically, first, he argues the State failed to meet its burden of establishing

that the warrantless search was reasonable. Second, he contends this was not a valid search

5
incident to arrest under Chimel because the area where the clothing and gun were located

was not within the “Chimel perimeter,” the area that may be fairly deemed an extension of

the body. Additionally, Borges argues the facts do not support a theory that he posed a

danger to the officers or had the means or intention of escaping. He contends the State’s

argument, that the police were justified in searching the pile of clothes because it was on

the nightstand beside where Borges was sleeping immediately before he was arrested, is

flawed and not supported by Maryland law. Third, Borges argues the search was not

justified under the plain view doctrine, nor was it legal under any other exception to the

warrant requirement, including the so-called “clothing exception,” which has not been

adopted in Maryland.

The State contends, first, that the court did not err in denying the motion to suppress

because the evidence was discovered during a lawful search incident to arrest under

Chimel. The State emphasizes that Maryland appellate courts have interpreted the “Chimel

perimeter” to be the area that an arrestee “might” be able to reach or grab, and there is no

bright line rule about the size of the Chimel perimeter. The State argues the handgun was

within what Maryland’s appellate courts have deemed to be the perimeter, considering

Borges was sleeping right beside the clothes where the handgun was located only moments

before he was arrested. The State contends the search legitimately arose because, at the

time of the arrest, Borges was dressed in a t-shirt and underwear and the police needed to

better clothe him to transport him because it was cold and raining outside. Because they

were required to dress him, for their safety, the police had to search the clothing Borges

6
was about to wear. Finally, the State argued that because the jacket would have been

ultimately within Borges’ immediate control, it was within the Chimel perimeter.

Second and alternately, the State contends that if the search was not valid under

Chimel, the police were permitted to search the clothing under the “clothing exception” to

the warrant requirement. The State argues that appellate authority from other jurisdictions,

which have adopted the clothing exception, is analogous to the facts here and is persuasive.

Specifically, under the clothing exception exigent circumstances existed to search Borges’

clothing because he was underdressed and needed to be dressed. Furthermore, the police

did not use the fact that he needed to be dressed to move Borges around the bedroom to

justify searching different areas within the room or any other clothing.

B. Analysis

It is well settled that the Fourth Amendment to the United States Constitution

prohibits ‘unreasonable’ searches and seizures. Johnson, 458 Md. at 533. 1

“Reasonableness” is “the ultimate measure of the constitutionality of a government

search.” Pacheco, 465 Md. at 320 (citing Maryland v. King, 569 U.S. 435, 447 (2013)).

Whether a particular warrantless action on the part of the police is “reasonable” under the

Fourth Amendment “depends ‘on a balance between the public interest and the individual’s

right to personal security free from arbitrary interference by law officers.’” Id. at 321

1
This constitutional mandate is made applicable to the states through the Fourteenth
Amendment. Corbin v. State, 428 Md. 488, 499 (2012); Article 26 of the Maryland
Declaration of Rights also protects Maryland citizens against unreasonable searches and
seizures. Because Borges has not made a separate argument based on Article 26, we will
decide this case based solely on the federal constitutional analysis.
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(quoting Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977)). Accordingly, “subject only

to a few specifically established and well-delineated exceptions, a warrantless search or

seizure that infringes upon the protected interests of an individual is presumptively

unreasonable.” Grant v. State, 449 Md. 1, 16-17 (2016).

One of the exceptions to the warrant requirement is a search incident to a valid

arrest. The United States Supreme Court in Chimel emphasized “that [t]he scope of [a]

search must be strictly tied to and justified by circumstances which rendered its initiation

permissible.” Chimel, 395 U.S. at 762 (internal quotations omitted). The Court also noted

that a search incident to arrest allows the police to search the person of the arrestee and any

area within his immediate control to protect themselves from danger and to prevent the

destruction or concealment of evidence. Id at 762-63. 2 The rule authorizes searches of areas

“within which [the arrestee] might gain possession of a weapon or destructible evidence.”

Id. at 763. “But these justifications are absent where a search is remote in time or place

from the arrest.” Id. at 764; see also Carter v. State, 236 Md. App. 456, 474

2
“When an arrest is made, it is reasonable for the arresting officer to search the
person arrested in order to remove any weapons that the latter might seek to use in order to
resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered,
and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer
to search for and seize any evidence on the arrestee’s person in order to prevent its
concealment or destruction. And the area into which an arrestee might reach in order to
grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a
table or in a drawer in front of one who is arrested can be as dangerous to the arresting
officer as one concealed in the clothing of the person arrested. There is ample justification,
therefore, for a search of the arrestee’s person and the area ‘within his immediate control’—
construing that phrase to mean the area from within which he might gain possession of a
weapon or destructible evidence.” Chimel, 395 U.S. at 762-63
8
(2018) (observing that “the search incident to arrest exception is applicable as long as the

search is essentially contemporaneous with the arrest”).

Maryland appellate courts have discussed and applied Chimel. Forty years ago, the

Supreme Court of Maryland determined that “the rule developed in Chimel was based on

an exigency rationale, that is, the safety of the officer and the preservation of evidence.”

Stackhouse v. State, 298 Md. 203, 211 (1983); see also Rodriguez v. State, 258 Md. App.

104, 116 (2023) (quoting Arizona v. Gant, 556 U.S. 332, 338 (2009)) (This exception

“derives from interests in officer safety and evidence preservation that are typically

implicated in arrest situations.”). This Court, in interpreting Chimel, stated that:

Chimel described the search incident zone as the area within the “reach, lunge
or grasp” of the arrestee. It may also be thought of as the “wingspan” or
“wingspread” of the arrestee. More and more these days, we use, as
convenient shorthand, the “Chimel perimeter.” All of these terms mean
exactly the same thing. They describe the area in which the arrestee MIGHT
be able to do either of the two bad things that the search incident exception
was designed to prevent him from doing. That danger zone is per se the zone
within which the police are permitted, nay encouraged, to take all necessary
preemptive or preventive measures.

Feaster v. State, 206 Md. App. 202, 231 (2012) (emphasis in original). The search

perimeter, this Court emphasized, is “pushed out to include a penumbral danger zone,”

which is the “area that may fairly be deemed an extension of the body.” Id. at 231. And

“[w]hen we map a particular Chimel perimeter, we measure outward from the epicenter of

the arrestee.” Id. at 240.

First, we address Borges’ argument that the estimated “ten feet” between him and

where the clothes were located is outside the Chimel perimeter. Borges is correct in that

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“[t]he reach of the perimeter may ebb or flow with contributory circumstances,” and “[o]ne

size does . . . not fit all” regarding the Chimel perimeter. Id. at 238. Thus, we must examine

the factual circumstances presented. Borges relies on Foster v. State, 297 Md. 191 (1983),

Lee v. State, 311 Md. 642 (1988), Feaster, and Stackhouse to establish dissimilarities

between the facts in those cases and those before us here. Borges’ arguments are not

persuasive.

In Foster, the appellant was arrested in a motel room for a murder that occurred

during a robbery. 297 Md. at 217. When the officers arrived, they were aware Foster was

previously involved in various serious, violent crimes, including robberies. Id. The

arresting officer patted Foster down, handcuffed her behind her back, and searched the area

immediately around her, including a partially open nightstand drawer that was a few feet

away. Id. at 217-18. In the nightstand, the arresting officer saw a large amount of money

and collected it as evidence. Id. at 218. Foster moved to suppress the evidence as a violation

of the Fourth Amendment. Id. The Supreme Court of Maryland held that the search of the

drawer incident to the arrest was reasonable under Chimel. Id. at 220. The Court reasoned

that:

[u]nder the circumstances here, it was reasonable for the arresting officer to
search for a weapon in a partially open drawer located within two feet of the
accused, even though she was then handcuffed. The fact that the accused was
handcuffed necessarily restricted her freedom of movement and,
consequently, the area within her reach, but did not necessarily eliminate the
possibility of her gaining access to the contents of the nightstand’s partially
open top drawer. Indeed, the partially open top drawer of the nightstand—a
natural place for a weapon to be hidden—remained an area of easy access for
the accused, particularly if she had been able to break free of restraint.

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Id. The Court further stated that “the arresting officer made no effort to search

anywhere other than the area immediately around the accused.” Id.

In Lee, the police received a tip that two men were bragging about participating in

a robbery and a shooting during a pickup basketball game and that the firearm used was in

one of their personal gym bags. 311 Md. at 649-50. Several officers went to the basketball

court with guns drawn, forced Lee and the other individual to lie prone, and then patted

them down. Id. at 651. One of the officers went to the gym bag hanging on the fence that

was estimated to be from “a couple of feet up to eight feet” away. Id. at 651, 667. The bag

felt heavy to the officer, and when he opened it, the firearm was found inside. Id. at 652.

The officers arrested Lee for the robbery. Id.

The Supreme Court of Maryland held that the bag was within the Chimel perimeter,

rendering the search valid under the Fourth Amendment. Id. at 670. The Court reasoned

that “the area of immediate control under Chimel is determined by the potentiality for harm

and not by actual, physical control by the arrestee at the time the search is conducted[,]”

and Chimel’s concept of an area of control is “quite flexible.” Id. at 670-71. Further, “[t]he

seizure of [Lee] and the search of the gym bag were contemporaneous with the custodial

arrest[,]” and “[t]he bag was subject to [Lee’s] control when the seizure of their persons

began and, however desperate or foolhardy it might have been for Lee . . . to lunge for the

bag while [the officer] was holding it, it was physically possible for them to attempt to do

so.” Id. at 672.

Borges contends that, in both Foster and Lee, officers dealt with arrestees who were

accused of violent gun charges. Arguably, they more clearly posed a danger to the officers

11
during those arrests. Additionally, the officers in both Foster and Lee only searched the

immediate area around the arrestees, which was “a couple of feet.” For those reasons,

Borges argues, neither case is applicable. We disagree.

We note that the “immediate area” searched in Lee and Foster was not confined to

a specific distance that would disqualify the estimated ten-foot distance here. Specifically,

the distance between Lee and the evidence was estimated to be from a couple of feet up to

eight feet, from where Lee was prone. Lee, 311 Md. at 667. Although the suppression court

in this case made no factual finding about the actual distance between Borges and the

clothes, the court determined the jacket was on a nightstand that touched the bed where

Borges was sleeping. Furthermore, the deputies, without objection from Borges, testified

that the distance was “about ten feet.” And as far as we are concerned, ten feet and the eight

feet in Lee are within a similar range when considering the Chimel perimeter, particularly

where here the officers would have had to have unhandcuffed Borges to dress him. Had

the officers not searched the jacket, the officers would have compromised their safety by

putting Borges into even closer proximity to the handgun.

Moreover, in Feaster, this Court upheld the search of two bags that were

approximately seven and sixteen feet away from the arrestee. 206 Md. App. at 212. In

doing so, the court noted that “the [seven-]foot call was relatively easy” and “[a]rguably,

the [sixteen-] foot call was pushing out the envelope a bit closer to its limits.” Id. at 241.

So, while we may have “winced” at sixteen feet, we ultimately found it acceptable. In this

case, ten feet is much closer to the “relatively easy” call of seven feet.

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Borges also relies on Stackhouse arguing that its holding “puts . . . to rest” the notion

that the area of control “includes[s] the area of a person’s control just before his arrest.”

Stackhouse, 298 Md. at 209. Stackhouse is unavailing because the facts there are markedly

different from the facts here. In Stackhouse, the arrestee was hiding in an attic when the

police arrived at his home to arrest him. 298 Md. at 207. The officers called Stackhouse

out of the attic. He complied and was handcuffed in the second-floor hallway. Id. at 208.

Then the officers went into the attic and discovered a shotgun buried in the insulation. Id.

The Court held this search was not within the Chimel perimeter. Id. at 217. The Court

reasoned that Stackhouse was taken out “of the attic and handcuffed; therefore, it cannot

be argued that, from the floor below, the area of the attic was within his grasp.” Id. at 218.

In so holding, the Court rejected the State’s expansion of Chimel under New York v. Belton,

453 U.S. 454 (1981) to include the area of a person’s control just before his arrest. Id. at

209.

Here, by contrast, Borges was not removed from the room where the contraband

was located. He simply stood on the other side of the bed from the nightstand, about ten

feet away, which, as just discussed, we hold was within the Chimel perimeter. In contrast,

Stackhouse was a floor away from where the police recovered the shotgun. That distance

rendered the search outside the Chimel perimeter. Here, the suppression court did not

expand Chimel, contrary to what Borges argues, because his area of control remained the

same within the bedroom. This stands in contrast to what happened to Stackhouse who had

been removed from the area where the contraband was located.

13
In considering further “contributory circumstances,” we consider Borges’

contention that because he was handcuffed and on the other side of the bed he would have

needed to possess “the skills of an acrobat or Houdini” to cover the ten feet between him

and the handgun. But we have consistently held that the arrestee being handcuffed or

having obstacles between him, and the contraband does not negate an otherwise lawful

search incident to arrest. See Feaster, 206 Md. App. at 237 (“As long as the arrest scene

retains any potential of volatility, however, the courts, unwilling to risk a dead officer, will

look on the arrestee as if he were Harry Houdini. The controversial calls almost invariably

will go to the State.”); see also Foster, 297 Md. at 219 (upholding the search incident to

arrest after the arrestee was handcuffed because “even after an arrestee has been handcuffed

there is a continuing potential for harm”); Ricks v. State, 82 Md. App. 369, 379 (1990),

aff’d, 322 Md. 183 (1991) (“We note that the area deemed to be within an arrestee’s reach,

lunge or grasp is broad, and is not necessarily made any narrower by apparent obstacles

inhibiting an arrestee’s movement.”); Lee, 311 Md. at 670 (“It is clear that the area of

immediate control under Chimel is determined by the potentiality for harm and not by

actual, physical control by the arrestee at the time the search is conducted.”).

Under the circumstances, although Borges was handcuffed and there was a bed

between him and the clothing, the holdings in Feaster, Foster, and Lee control. The

situation here is not substantially different from those cases. Borges was handcuffed, as

were the arrestees in Feaster and Foster, while the arrestee in Lee was forced to the ground

and held by officers with their guns drawn. The bed, in this case, was a physical obstacle.

But Borges was a potentially dangerous arrestee by virtue of the first-degree assault charge.

14
In situations like this, where officer safety is the concern, as we have noted, “[t]he

controversial calls almost invariably will go to the State.” Feaster, 206 Md. App. at 237.

And, when observing a police officer’s actions, “[t]he reasonableness of a search . . . ‘does

not depend on the officer’s subjective motivations.’” Brown v. State, 261 Md. App. 83, 104

(2024) (quoting Rodriquez, 258 Md. App. at 123). Instead, “the inquiry is objective and

‘[w]e look to the record as a whole to determine what facts were known to the officer and

then consider whether a reasonable officer in those circumstances would have’” acted in a

similar manner. Id. (quoting United States v. Edwards, 769 F.3d 509, 516 (7th Cir. 2014)

(emphasis in original)). Borges was being arrested for a violent offense. He had to be

dressed to be transported. The officers found a handgun in the clothes that they would have

had to unhandcuff Borges to dress. Under an objective standard of how a reasonable police

officer would have acted, under the circumstances, we cannot conclude that the deputies’

actions in this case were unreasonable.

III. Because We Resolve this Appeal Based on Chimel, We Decline to
Consider or Adopt the Clothing Exception

Borges also asks us to consider the deputies’ motivation for grabbing the clothing.

Although the State argues we should adopt the clothing exception to the warrant

requirement, we decline to do so because we have resolved the case based on Chimel. We,

however, recognize the existence of the clothing exception to the warrant requirement

which, as recognized in other jurisdictions, states that,

an officer is authorized to take reasonable steps to address the safety of the
arrestee and that the arrestee’s partially clothed status may constitute an
exigency justifying the officer’s temporary reentry into the arrestee’s home

15
to retrieve clothes reasonably calculated to lessen the risk of injury to the
defendant.

United States v. Gwinn, 219 F.3d 326, 333 (4th Cir. 2000). While exigency is the

overarching concern, courts rely on several factors when applying the clothing exception:

(1) [The officer] was presented with an objective need to protect [the
arrestee] against the substantial risk of injury to his feet and of chill in the
absence of a shirt, (2) there was no evidence or even a claim that [the
officer’s] reasons for reentering the trailer were pretextual, (3) the intrusion
into [the arrestee’s] trailer was slight and temporary, particularly in light of
the fact that the officers had only moments before lawfully been in the trailer
to ensure the safety of [third parties] and had neither completed their business
at the site nor left it, (4) the intrusion was strictly limited to the purpose of
retrieving shoes and clothing, and (5) the purpose of the reentry and seizure
of the boots was not to serve a governmental interest, but to ensure [the
arrestee’s] reasonable safety while he was in the government’s custody.

United States. v. Casper, 34 F.Supp.3d 617, 623 (E.D. Va. 2014) (quoting Gwinn, 219 F.3d

at 333-34). When invoking the clothing exception, “the government bears the burden of

demonstrating particularly that the arrestee had a substantial need for the clothing and that

the government’s response was limited strictly to meeting that need.” Gwinn, 219 F.3d. at

335. “Courts allow a clothing exception only when obtaining clothing will further the

safety of the arrestee, not when the additional clothing simply ‘complete[s] the arrestee’s

wardrobe.’” Casper, 34 F.Supp.3d at 623 (quoting Gwinn, 219 F.3d at 333).

We acknowledge the viability of the clothing exception as a legal theory. But we do

not feel constrained to adopt it here because, as stated, the issue Borges poses on appeal

may be resolved using a Chimel analysis.

IV. Conclusion

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When reviewing the suppression court record, we assess the facts and reasonable

inferences therefrom in the light most favorable to the prevailing party, the State here. See

Davis, 426 Md. at 219. Under the circumstances, because the clothing, specifically the

jacket that Borges was about to don was within the Chimel perimeter, a reasonable officer

reasonably would have searched the clothing for officer safety. Although Borges contends

the deputies ignored him when he directed them to clothing that was not on the nightstand,

it was still reasonable for the deputies to believe the men’s clothing on the nightstand

belonged to Borges’ because he was sleeping in his grandmother’s bedroom.

We conclude there was no Fourth Amendment violation because the firearm was

evidence discovered during a valid and reasonable search incident to arrest under Chimel.

Therefore, we hold that the circuit court did not err in denying Borges’ motion to suppress.

THE JUDGMENTS OF THE CIRCUIT
COURT FOR PRINCE GEORGE’S
COUNTY ARE AFFIRMED.
APPELLANT TO PAY THE COSTS.

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