Petition for Writ of Certiorari — Maryland v. Pringle
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Ne rice OF THE CLERK
IN THE
Supreme Court of the United States
STATE OF MARYLAND,
Petitioner,
Vv.
JOSEPH JERMAINE PRINGLE,
Respondent.
On Petition For Writ of Certiorari
To The Court of Appeals of Maryland
PETITION FOR WRIT OF CERTIORARI
J. JOSEPH CURRAN, JR.
Attorney General of Maryland
GARY E. BAIR*
Solicitor General
Office of the Attorney General
Criminal Appeals Division
200 Saint Paul Place
Baltimore, Maryland 21202
(410) 576-6422
Counsel for Petitioner
*Counsel of Record
QUESTION PRESENTED
Where drugs and a roll of cash are found in the
passenger compartment of a car with multiple occupants,
and all deny ownership, does the Fourth Amendment
prohibit a police officer from arresting the occupants of
the car?
” ill
il
PARTIES TO THE PROCEEDING TABLE OF CONTENTS
The caption contains the names of all the parties below. Page
| QUESTION PRESENTED ........cccccccccccess i
| PARTIES TO THE PROCEEDING .............. il
| i Serr ekadssscedececceccess: l
| STATEMENT OF JURISDICTION ..............
CONSTITUTIONAL PROVISIONS INVOLVED ... 1
STATEMENT OF THE CASE ............ec00. 2
REASONS FOR GRANTING THE WRIT ......... 5
I. This Court’s Probable Cause Precedent Does
Not Resolve the Issue in the Multiple-
Suspect Comtext Here .........cccccccees 5
Il. The Lower Courts Are in Conflict on the
Issue of Assessing Probable Cause in
Niulti-Guapect Cases ............ccceeee: )
III. The Multiple-Suspect Probable Cause
Issue is Frequently Recurring and of Great
Importance to Law Enforcement and the
DCU C ee duesecencsedcoccececs 14
iv
Page
ADPTIGI .occccccccccccccccccccccecess la-79a
TABLE OF AUTHORITIES
Cases:
Beck v. Ohio, 379 U.S. 89 (1964) ... 2... eee eeeee 7
Blake v. State, 772 So. 2d 1200
(Ala. Crim. App. 2000) ...... \iteeeeeeseeeeee 13
Brinegar v. United States, .
338 U.S. 160 (1949) .. 0... eee cece eee ee 4, passim
Brown v. Illinois, 422 U.S. 590 (1975) .......05++: 4
Brunson v. State, 940 S.W.2d 440 (Ark.),
cert. denied, 522 U.S. 898 (1997) .....-..-0005: 12
Carroll v. United States, 267 U.S. 132 (1925)....... 6
Commonwealth v. Sangricco, 379 A.2d 1342
1. LL) Pee 13
Draper v. United States, 358 U.S. 307 ee 7
Fernandez v. Perez, 937 F.2d 368 (7th Cir. 1991) .. 12
Florida v. Royer, 460 U.S. 491 (1983) ........05. 15
Page
Gerstein v. Pugh, 420 U.S. 103 (1975) ............ 6
Illinois v. Gates, 462 U.S. 213 (1983) ............. 7
Jackson v. State, 643 A.2d 1360 (Del. 1994),
cert. denied, 513 U.S. 1136 (1995) ............. 13
Leday v. State, 3 S.W.3d 667 (Tex. App. 1999) .... 11
Locke v. United States, 11 U.S. (7 Cranch)
DEED cl ddbbadevdeundesdudeeesbkaccuces 6
Matter of Grand Jury Investigation, 692 N.E.2d 56
(Mass.), cert. denied, 525 U.S. 873 (1998) ....... 13
Michigan v. DeFillippo, 443 U.S. 31 (1979) ........ 6
Miranda v. Arizona, 384 U.S. 436 (1966) .......... 3
New York v. Belton, 453 U.S. 454(1981) ......... 14
Ornelas v. United States, 517 U.S. 690 (1996) ...... 7
People v. Foster, 788 P.2d 825 (Colo. 1990)....... 10
People v. Harshbarger, 321 N.E.2d 138
SUE GEUED cacenccssccccvacceccsecs .. 10,11
People v. Sutherland, 683 P.2d 1192 (Colo. 1984) .. 13
Rogers v. State, 586 So. 2d 1148 (Fla. App. 1991) .. 10
State v. Horton, 625 N.W.2d 362 (Iowa),
cert. denied, 122 S. Ct. 288 (2001) ............. 12
State v. Jacobs, 704 S.W.2d 300 (Mo. App. 1986) .. 10
State v. Jenison, 442 A.2d 866 (R.I. 1982) ........ 11
State v. Johnson, 682 So. 2d 385 (Ala. 1996) ...... 13
State v. Mitchell, 482 N.W.2d 364 (Wis. 1992) ..... 13
State v. Steelman, 2002 WL 31398545
(Tex. Crim. App. Oct. 23, 2002) ............ 11,15
United States v. Arvizu, 122 S. Ct. 744 (2002) ...... 7
United States v. Buckner, 179 F.3d 834 (9th Cir.
1999), cert. denied, 528 U.S. 1094 (2000)........ 12
United States v. Di Re, 332 U.S. 581 (1948) . . 7, passim
Wyoming v. Houghton, 526 U.S. 295 (1999) . . 8, passim
Ybarra v. Illinois, 444 U.S. 85 (1979) ....... 8, passim
vii
Constitutional Provisions:
United States Constitution:
28 U.S.C. § 1257
Rule:
Rules of the Supreme Court
2 Wayne R. LaFave, Search and Seizure
jie eae
Petitioner, the State of Maryland, respectfully requests
that a writ of certiorari issue to review the judgment of the
Court of Appeals of Maryland.
OPINIONS BELOW
The opinion of the Court of Appeals of Maryland is
reported at 370 Md. 525, 805 A.2d 1016 (2002) (App. la-
49a). The opinion of the Court of Special Appeals of
Maryland is reported at 141 Md. App. 292, 785 A.2d 790
(2001) (App. 50a-77a). The opinion of the Circuit Court
for Baltimore County denying Pringle’s motion to
suppress is unreported. (App. 78a-79a).
STATEMENT OF JURISDICTION
The judgment of the Court of Appeals of Maryland was
entered on August 27, 2002. (App. la). This petition is
filed within 90 days as required by Rule 13 of the Rules of
the Supreme Court. Therefore, jurisdiction of this Court
is properly invoked pursuant to 28 U.S.C. § 1257(a).
CONSTITUTIONAL PROVISIONS INVOLVED
United States Constitution, Amendment IV:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched,
and the persons or things to be seized.
2
United States Constitution, Amendment XIV:
Section 1.
All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State
wherein they reside. No State shall make or
enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny
to any person within its jurisdiction the equal
protection of the laws.
STATEMENT OF THE CASE
On August 7, 1999, at 3:16 a.m., Officer Jeffrey
Snyder of the Baltimore County Police Department
stopped a Nissan Maxima for speeding. (App. 2a-3a, 50a).
In the vehicle were Donte Partlow, the driver and owner,
as well as Respondent Pringle, the front seat passenger,
and Otis Smith, the back seat passenger. (App. 3a).
When Partlow opened the glove compartment to search
for his vehicle registration, Officer Snyder saw a large
quantity of rolled up money. (App. 3a). Officer Snyder
then asked for and received Partlow’s consent to search
the vehicle. (App. 3a). The search uncovered $763.00 in
cash from the glove compartment, and five baggies
containing suspected cocaine, found inside a back seat
armrest. (App. 3a).
All three occupants of the car denied ownership of the
drugs and money, and all were arrested and taken to the
3
station house. (App. 3a-4a). After waiving his Miranda!
rights, Pringle confessed that the drugs belonged te him,
and that neither Partlow nor Smith knew he had the
cocaine. (App. 4a). Partlow and Smith were released, and
Pringle was charged with possession with intent to
distribute cocaine. (App. 4a).
A hearing was held on Pringle’s motion to suppress
evidence on March 23, 2000. (App. 78a). The
suppression court ruled that the officer had probable cause
to arrest Pringle and that Pringle’s statement was properly
obtained. (App. 79a). On April 11, 2000, Pringle was
convicted by a jury of possession with intent to distribute
cocaine and possession of cocaine. (App la). Pringle was
sentenced to a term of ten years’ incarceration on May 9,
2000. (App. 1a).
On appeal, a three-judge panel of the Court of Special
Appeals of Maryland affirmed Pringle’s convictions.
(App. 50a-77a). A majority rejected Pringle’s assertion
that the police lacked probable cause to arrest him and that
his confession was the fruit of an illegal arrest. (App. 56a-
61a). The majority concluded: “The circumstances were
sufficient to constitute probable cause to make an arrest.”
(App. 61a). One judge dissented, finding probable cause
to arrest Pringle lacking. (App. 66a-77a). This judge
found significant the fact that, although Pringle “may have
been within an arm’s reach of the drugs, in fact, to expose
the drugs, he would have had to stretch his body,
maneuver around the back of his seat, and pull down the
arm rest.” (App. 74a).
On certiorari review, the Court of Appeals of Maryland
"Miranda v. Arizona, 384 U.S. 436 (1966).
4
reversed, in a four-to-three decision. (App. 1a-49a).
According to the majority, “the mere finding of cocaine in
the back armrest” was insufficient to establish probable
cause to arrest a front seat passenger. (App. 21a). The
majority discounted the discovery of the cash in the glove
compartment because the glove compartment was closed
until the driver searched for the vehicle registration. (App.
22a). Without citation, the majority noted: “Simply
stated, a policy of arresting everyone until somebody
confesses is constitutionally unacceptable.” (App. 22a).
Three judges dissented, stating at the outset that: “The
majority’s holding that the police officers lacked probable
cause to arrest [Pringle] for possession of cocaine is based
primarily upon an erroneous blending of the probable
cause standard for an arrest and the sufficiency of evidence
standard for a conviction.” (App. 36a). The dissent found
probable cause to arrest Pringle given that three men were
traveling in a vehicle around 3:00 a.m. with a large amount
of cash and several baggies of cocaine, and, further, that
the location of the drugs and money would lead a
reasonable officer to conclude that the three had joint
constructive possession of the contraband. (App. 38a).
The dissent concluded its discussion of probable cause: “I
fear that the majority’s holding today will, in effect,
‘unduly hamper law enforcement’ in this State.” (App.
46a) (quoting Brinegar v. United States, 338 U.S. 160, 176
*The majority then addressed the issue of
attenuation, finding no causal break between the arrest and
the confession under Brown v. Illinois, 422 U.S. 590
(1975). (App. 24a-33a). That finding is not challenged
here.
(1949)).
REASONS FOR GRANTING THE WRIT
As a practical matter, the court below has created a per
se rule that any time a police officer discovers contraband
secreted in a car occupied by several persons, the officer
lacks probable cause to arrest any of the passengers. This
decision should not be allowed to stand and, indeed,
should be reviewed by this Court for several reasons.
First, although this Court has set forth the general
standards for assessing probable cause, it has not ruled on
the standards for determining the issue in the context of
multiple suspects. Second, because this Court has never
addressed the issue of probable cause as it relates to
multiple persons found in the vicinity of drugs, the lower
courts have reached conflicting results in similar factual
circumstances. Third, this is a frequently recurring and
important issue that requires this Court’s definitive ruling.
I. This Court’s Probable Cause Precedent Does Not
Resolve the Issue in the Multiple-Suspect Context Here.
This Court has not squarely addressed the probable
cause issue before it here, i.e., whether in a multi-suspect
case arising out of a car stop, the police have probable
cause to arrest all occupants of the vehicle when
contraband is found in the passenger compartment.
Further, there is some tension between this Court’s more
general probable cause to arrest decisions and those that
appear to require a more particularized showing before
someone may lawfully be arrested. With this case,
however, that gap in the law can be filled.
6
Over half a century ago, this Court delineated the
general standards to assess probable cause in the context
of warrantless arrests. See Brinegar v. United States, 338
U.S. 160 (1949). The standard is less than would justify
conviction for the crime, but it is more than “bare
suspicion.” Jd. at 175 (citing Locke v. United States, 11
U.S. (7 Cranch) 339, 348 (1813)). Harkening back to
Carroll v. United States, 267 U.S. 132 (1925), the Court
concluded:
Probable cause exists where “the facts and
circumstances within their (the officers’)
knowledge and of which they had reasonably
trustworthy information (are) sufficient in
themselves to warrant a man of reasonable caution
in the belief that” an offense has been or is being
committed.
Id. at 175-76 (quoting Carroll, 267 U.S. at 162).
Brinegar balances protection for the privacy of law-
abiding citizens with the “fair leeway” in the enforcement
of the law necessary for the community’s protection. Jd.
at 176. As the Court summed up:
The rule of probable cause is a practical,
nontechnical conception affording the best
compromise that has been found for
accommodating these often opposing interests.
Requiring more would unduly hamper law
enforcement. To allow less would be to leave law-
abiding citizens at the mercy of the officers’ whim
or Caprice.
Id.
In the years since Brinegar was decided, the Court has
consistently preserved this delicate balance. See, e.g.,
Michigan v. DeFillippo, 443 U.S. 31, 37 (1979); Gerstein
7
v. Pugh, 420 U.S. 103, 111-12 (1975); Beck v. Ohio, 379
U.S. 89, 91 (1964); Draper v. United States, 358 U.S. 307,
312-13 (1959).
The determination of probable cause requires that the
totality of the circumstances be assessed. See Jllinois v.
Gates, 462 U.S. 213, 230-31 (1983). Such circumstances
are to be viewed “not in terms of library analysis by
scholars, but as understood by those versed in the field of
law enforcement.” Jd. at 232. Even observations that
might be “readily susceptible to an innocent explanation”
are to be considered in the Fourth Amendment
determination. United States v. Arvizu, 122 S. Ct. 744,751
(2002). Moreover, the inferences drawn by law
enforcement officers should be given “due weight” by a
reviewing court. Ornelas v. United States, 517 U.S. 690,
699 (1996). : |
These principles relating to probable cause generally
have been developed and applied to a single suspect,
where the issue was simply whether there was the
necessary quantum of evidence to satisfy the Fourth
Amendment standard. Other cases, however, have been
decided in the context of whether probable cause to arrest
one person necessarily gives the police the requisite
justification to arrest an associate or companion of the
arrestee. —
Just one year before Brinegar was decided, this Court
addressed this point in United States v. Di Re, 332 U.S.
581 (1948). There, a rear seat passenger visibly held
counterfeit gas ration coupons he told officers he received
from the driver, Buttitta. Jd. at 583. The passenger to the
right of the driver was Di Re, who did nothing other than
sit in the car. Jd. On these facts, this Court ruled that the
arrest of Di Re was not supported by probable cause,
noting that “whatever suspicion might result from Di Re’s
mere presence seems diminished, if not destroyed, when
Reed, present as the informer, pointed out Buttitta, and
Buttitta only, as a guilty party.” Jd. at 594. Because
Buttitta was singled out, probable cause did not extend to
Di Re.
Thirty years later, in a different context, the Court built
upon the foundation of Di Re in Ybarra v. Illinois, 444
U.S. 85 (1979). In that case, a patron of the Aurora Tap
Tavern was searched while officers were executing a
search warrant at the premises after having seen drugs on
the person of the bartender and behind the bar. Jd. at 87-
88. Finding the search illegal, this Court stated: “Where
the standard is probable cause, a search or seizure of a
person must be supported by probable cause particularized
with respect to that person.” Jd. at 91.
Taken together, Ybarra and Di Re have been
understood to stand for the proposition that probable cause
_must be examined on an individualized basis, and not by
a person’s mere proximity to someone else suspected of
criminal activity. More recently, however, this Court cast
some doubt on this proposition in the context of a car
search where both a driver and passengers were present.
In Wyoming v. Houghton, 526 U.S. 295, 297 (1999), a car
was stopped for speeding and driving with a faulty brake
light. After developing probable cause to search the car
based on the driver’s admission to using drugs, the officer
searched the purse on the back seat belonging to passenger
Sandra Houghton. Jd. at 298. Distinguishing both Ybarra
and Di Re, the Court upheld the search. Jd. at 303. The
Court reasoned that a car passenger “will often be engaged
in acommon enterprise with the driver, and have the same
interest in concealing the fruits or evidence of their
9
wrongdoing.” /d. at 304-05.
Although Houghton was decided in the context of the
automobile exception to the warrant requirement, it has
been understood as a departure from the principles of Di
Re and Ybarra. Not before the Court in Houghton, but at
issue in the present case, is whether probable cause exists
to arrest passengers as well as the driver when contraband
is found secreted in the passenger compartment of a
vehicle. Given the tension between the individualized
suspicion cases of Ybarra and Di Re, as opposed to the
“common enterprise” approach of Houghton, it is
understandable how lower courts have reached opposite
results on factually similar cases. The present case can be
used to harmonize these decisions.
Il. The Lower Courts Are in Conflict on the Issue of
Assessing Probable Cause in Multi-Suspect Cases.
The lower federal and state courts have struggled with
applying the probable cause standard in the context of
multi-suspect arrests, leading to differing and thus
conflicting results. The decision below is typical of one
view, which stresses the importance of probable cause
being linked to a specific individual. Other courts have
focused less on a particular person, looking rather to more
generalized n-vions of probable cause. This confusion is
understandable given that this Court has never directly
confronted the question of probable cause in a factual
context like the present one, and its prior decisions in
somewhat analogous situations have given support to both
positions held by the lower courts.
Relying on Di Re, the Maryland court below found
probable cause lacking to arrest Pringle. (App. 19a-20a).
10
As the Maryland court stated: “The Supreme Court held
that Di Re’s mere presence in a vehicle involved in
criminal activity, without more, did not cause him to lose
his right to be free from a search of his person.” (App.
20a). Presumably, the Maryland court below would have
upheld the arrest of the driver and owner of the car, but
believed that Pringle’s “mere presence” in the car did not
justify his arrest.
Stressing the importance of probable cause being
linked to a specific individual, other courts have also relied
upon Di Re in ruling that an officer did not have probable
cause to arrest a passenger present in a vehicle where
drugs or other contraband were found. Typical is People
v. Foster, 788 P.2d 825 (Colo. 1990), where the police
arrested both the driver and passenger of a pickup truck
that was transporting a suspected stolen motorcycle. /d. at
826-27. Believing Di Re to be the controlling precedent,
the Supreme Court of Colorado held that the mere
presence of the passenger, Foster, did not provide the
officer with probable cause to arrest him, even where the
passenger acknowledged that he was aware of the
motorcycle in the back of the truck. /d. at 829. Other
courts have relied upon Di Re in similar circumstances.
See, e.g., Rogers v. State, 586 So. 2d 1148, 1151-52 (Fla.
App. 1991) (no probable cause to arrest front-seat
passenger of minivan when drugs found in pocket behind
each of front seats); State v. Jacobs, 704 S.W.2d 300, 301-
02 (Mo. App. 1986) (no probable cause to arrest back-seat
passenger for underage alcohol offense when open and
unopen cans of beer found in front seat floor area).
Di Re has also been relied upon in other multi-suspect
contexts. In People v. Harshbarger, 321 N.E.2d 138 (Ill.
App. 1974), officers received information that Robert
11
Leads had a large amount of marijuana in his possession.
Id. at 139. When police went to Leads’s house, three other
persons, including Harshbarger, were seated in the living
room. /d. Detecting a strong odor of burning marijuana,
the officers arrested all four men. /d. Relying upon Di Re,
the Illinois court concluded the arrest of Harshbarger was
unlawful, because “[h]e was merely one of four persons
sitting in the living room of a house in which the officers
thought they smelled burning marijuana.” /d. at 140.
More recently, Harshbarger was relied upon by the Texas
Court of Criminal Appeals to invalidate an arrest under
similar circumstances. See State v. Steelman, 2002 WL
31398545 at *5 (Tex. Crim. App. Oct. 23, 2002) (en banc).
In like regard, other courts have relied upon Ybarra. In
particular, these courts look to the language in Ybarra that
“a person’s mere propinquity to others independently
suspected of criminal activity does not, without more, give
rise to probable cause to search that person.” 444 U.S. at
91. In State v. Jenison, 442 A.2d 866 (R.I. 1982), a female
passenger was arrested when police discovered cash and a
weapon in the trunk of the car in which she was riding. Jd.
at 870. The Supreme Court of Rhode Island found
probable cause lacking to arrest the passenger, relying on
Ybarra for the proposition that her presence with someone
suspected of criminal activity (the driver) did not, by itself,
establish probable cause. /d. at 874. Similarly, a Texas
state court relied upon Ybarra in holding that probable
cause did not exist to arrest a passenger when narcotics
were found on the driver after a dog alerted to the presence
of drugs in a car stopped for speeding. See Leday v. State,
3 S.W.3d 667, 672 (Tex. App. 1999).
Still other courts, however, have reached the opposite
result in multiple-suspect cases, recognizing that probable
12
cause does not mean more probable than not with respect
to the identity of a particular person as the offender. In
State v. Horton, 625 N.W.2d 362 (lowa), cert. denied, 122
S. Ct. 288 (2001), for example, the court looked to
Brinegar rather than Di Re in analyzing probable cause
where a driver and passenger were stopped. After the
driver admitted to the officer that there were some
“roaches” in the ashtray and the officer saw marijuana
butts there, the passenger Horton was arrested. Id. at 363.
Horton argued that the actions of the driver could not be
imputed to her, but the court ruled as follows: “The
officers in Horton’s case could have reasonably believed
the marijuana had been smoked by Horton, her companion,
both, or perhaps neither.” Jd. at 367.
ee enema inmnemmnsoanel four
occupants, and the officer smelled the odor of marijuana
coming from the vehicle. Brunson v. State, 940 S.W.2d
440, 441 (Ark.), cert. denied, 522 U.S. 898 (1997). The
court ruled that the smell gave rise to probable cause to
believe an offense was being committed, as well as
probable cause to arrest all occupants of the vehicle. Id. at
442. Rejecting Brunson’s argument that “individualized”
probable cause was needed to arrest him, the court stated:
“Such an argument would lead to the illogical conclusion
that none of the four occupants could have been arrested
even though the smell of marijuana or its smoke was
emanating from the enclosed space of the vehicle where all
four occupants were present.” Jd. Accord United States v.
Buckner, 179 F.3d 834, 838-39 (9th Cir. 1999) (passenger
, may be arrested when marijuana found secreted in car;
reliance on Ybarra rejected), cert. denied, 528 U.S. 1094
(2000); Fernandez v. Perez, 937 F.2d 368, 370 (7th Cir.
1991) (probable cause exists to arrest all occupants of car
13
when metal-piercing bullets found in trunk); Blake v.
State, 772 So. 2d 1200, 1206-07 (Ala. Crim. App. 2000)
(individualized suspicion not needed to arrest driver or
passenger when odor of burning marijuana emanates from
car); Jackson v. State, 643 A.2d 1360, 1365-66 (Del. 1994)
(all occupants of vehicle may be arrested when contraband
found in non-secretive location; reliance on Di Re
rejected), cert. denied, 513 U.S. 1136 (1995); State v.
Mitchell, 482 N.W.2d 364, 368 (Wis. 1992) (probable
cause to arrest two persons in car where officer smelled
marijuana and saw smoke inside vehicle).
In analogous contexts, courts have ruled that probable
cause to arrest one person is not negated simply because
there may also be probable cause to arrest someone else.
Where a car was involved in a fatal accident, and both
occupants were taken to the hospital, the officer had
probable cause to involuntarily extract blood from both,
even though only one could have been driving. See People
v. Sutherland, 683 P.2d 1192, 1196 (Colo. 1984). Where
police suspect two people of the child-abuse murder of a
young child, they may arrest either or both. See State v.
Johnson, 682 So. 2d 385, 387 (Ala. 1996). See also
Matter of Grand Jury Investigation, 692 N.E.2d 56, 57
(Mass.) (in investigating apparent rape of profoundly
retarded and autistic young woman who lived with parents
and brother, police had probable cause to believe either
brother or father committed crime, and blood sample could
be ordered from both), cert. denied, 525 U.S.-873 (1998);
Commonwealth v. Sangricco, 379 A.2d 1342, 1344 (Pa.
1977) (where both Sangricco and estranged wife of
shooting victim were present at time of shooting, police
had probable cause to order neutron activation analysis test
on both). See generally 2 Wayne R. LaFave, Search and
14
Seizure § 3.2(e) at 65 (3d ed. 1996) (probable cause exists
in such situations because of “an investigative function
which is served by the making of arrests”).
These latter cases illustrate why it was reasonable, in
this case, for Officer Snyder to arrest all three of the
occupants of the car he stopped. Having seen a large roll
of bills and a quantity of crack cocaine in the car, the
officer may not have been certain who possessed the
money and drugs, but he certainly was reasonable in
believing that one or more of the current occupants were
guilty of a crime. Experience, logic, and common sense
suggest that when there are three occupants in a car, there
is a fair probability that they are “engaged in a common
enterprise with the driver,” Houghton, 526 U.S. at 304, and
all are implicated. Thus, under Brinegar and its progeny,
the officer had probable cause to arrest Pringle (as well as
the other two occupants).
Yet as shown above, there is a conflict in the lower
courts on this issue in multiple-suspect cases, leading to
results such as in the fractured decision below. The Court
should take this opportunity to resolve the conflict, thereby
ending the confusion engendered by cases such as Di Re
and Ybarra on the one hand and Brinegar and Houghton
on the other.
III. The Multiple-Suspect Probable Cause Issue is
Frequently Recurring and of Great Importance to Law
Enforcement and the Public.
Over two decades ago, this Court decided a different
issue in a case with similar facts to the present one. In
New York v. Belton, 453 U.S. 454, 455-56 (1981), all four
men in the lawfully stopped car were arrested when the
15
officer smelled burnt marijuana and saw an envelope
marked “Supergold.” This Court had no occasion then to
address the validity of the arrests, but that threshold issue
needs to be resolved now. Countless times each day,
officers make traffic stops and uncover contraband in
multi-passenger situations. Police need the clarity of
authority to know who may be arrested in such cases. The
same issue arises when a trained drug sniffing dog alerts to
the presence of narcotics in a vehicle, and officers need to
know whether it gives rise to probable cause to arrest all of
the occupants. Cf Florida v. Royer, 460 U.S. 491, 506
(1983) (had police used dog to scan luggage, “a positive
result would have resulted in his justifiable arrest on
probable cause”).
As shown above, this probable cause question in
multiple suspect cases reaches far beyond the vehicle stop
context. Any time the police are investigating a crime—be
it driving while intoxicated, child abuse, rape, or
murder—-they must have the authority to arrest two
suspects, even if only one could have committed the crime,
where they know that one of the two (but not the other) did
commit the crime. The sentiments expressed in a similar
case apply with equal force here: “Suffice it to say that
today’s opinion will affect hundreds of thousands of future
cases, because according to the majority, anytime there are
two or more people involved at a crime scene, and there is
any ambiguity as to which of them is the perpetrator,
officers lack probable cause to arrest any of them. This is
preposterous.” State v. Steelman, 2002 WL 31398545 at
* 16 (Tex. Crim. App. Oct. 23, 2002) (en banc) (Keasler,
J., dissenting).
In sum, the decision below alters the balance this Court
struck in Brinegar. By setting the probable cause bar
16
higher, the court below has, as the dissent below points
out, “unduly hamper[ed] law enforcement.” (App. 46a).
CONCLUSION
For the foregoing reasons, the State of Maryland
respectfully requests that this Court issue a writ of
certiorari to review the judgment of the Court of Appeals
of Maryland.
Respectfully submitted,
J. JOSEPH CURRAN, JR.
Attorney General-of Maryland
GARY E. BAIR*
Solicitor General
Counsel for Petitioner
*Counsel of Record
November 22, 2002
APPENDIX
CONTENTS OF APPENDIX
APPENDIX A:
Reported opinion of the Court of Appeals
of Maryland, filed August 27, 2002,
Joseph Jermaine Pringle v. State of Maryland,
370 Md. 525, 805 A.2d 1016 (2002)
APPENDIX B:
Reported opinion of the Court of Special
Appeals of Maryland, filed November 28,
2001, Joseph Jermaine Pringle v. State
of Maryland, 141 Md. App. 292,
785 A.2d 790 (2001)
APPENDIX C:
Unreported ruling of the Circuit Court
for Baltimore County, Maryland,
March 23, 2000, State of Maryland v.
Joseph Pringle, Case No. 99-CR-3578
la
APPENDIX A
Court of Appeals of Maryland.
Joseph Jermaine PRINGLE,
Vv
STATE of Maryland.
No. 129, Sept. Term, 2001.
Aug. 27, 2002.
Argued before BELL, C.J.. ELDRIDGE, RAKER,
WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.
CATHELL, J.
On April 11, 2000, Joseph Jermaine Pringle, petitioner,
was convicted by a jury in the Circuit Court for Baltimore
County of possession with intent to distribute cocaine and
possession of cocaine. On May 9, 2000, petitioner was
sentenced to a term of ten years incarceration without the
possibility of parole.’
Petitioner appealed this conviction to the Court of
Special Appeals. On appeal, petitioner asserted, inter alia,
that there was no probable cause to support his arrest
' By order dated April 4, 2001, a three-judge panel of
the Circuit Court for Baltimore County modified
petitioner’s sentence. The effect of the modification was
a change in petitioner’s no-parole sentence to a ten-year
sentence with the possibility of parole.
2a
which led to his conviction. On November 28, 2001, -
intermediate appellate court held that there was probab e
cause to arrest petitioner and affirmed his agree
Pringle v. State, 141 Md.App. 292, 785 A.2d 790 (2 >
On March 6, 2002, we granted petitioner s a ~
Writ of Certiorari. Pringle v. State, 368 Md. 239,
A.2d 1177 (2002). Petitioner presents one question for our
review:
“Did the police have probable cause to arrest the
petitioner where he was a front seat passenger in a
vehicle also occupied by the driver/owner and a rear
seat passenger, and in which a sum of money was
found inside the closed glove compartment and a
quantity of drugs was found hidden behind a _p
armrest, and where there was neither the odor o
drugs within the vehicle nor any other indicia of drug
ivity?”
We nll We hold that there was not probable —_
to support the arrest of the petitioner in the car when
had not admitted ownership of the drugs. Specifical ly, we
hold that there was not probable cause to arrest petitioner,
who was not the owner of the vehicle, when petitioner was
merely the front seat passenger and the anche ee
supporting the arrest was a sum of money ert ty
front glove compartment and drugs that were hi
view in the armrest in the backseat of the vehicle.
I. Facts
Police
fficer Jeffrey Snyder of the Baltimore County
~ ent testified that at 3:16 agnor re
7, 1999, on his routine patrol in
ew -lle o Si area of Baltimore County, he
3a
conducted a traffic stop. Officer Snyder asked the driver
for his license and registration. The driver/registered
owner of the car was Donte Carlos Partlow (Partlow).
Also in the vehicle were petitioner, the front seat
passenger, and Otis Calvin Smith (Smith), the back seat
passenger.
When Partlow opened the glove compartment for the
vehicle registration, Officer Snyder saw a large amount of
rolled up money in the glove compartment. At this time,
Officer Snyder did not ask about the money, but went back
to his patrol car with Partlow’s license and registration to
check the Maryland Motor Vehicle Administration
computer system for outstanding violations. The computer
check did not reveal any violations and Officer Snyder
returned to the car, had Partlow exit the vehicle, and issued
him an oral warning.
At this time, a second patrol car arrived and Officer
Snyder then “asked him [Partlow] if he had anything in
the vehicle, any drugs, weapons, narcotics in the vehicle?”
Partlow responded that he did not. Officer Snyder then
asked for and received permission from Partlow to search
the vehicle. Prior to doing so, Officer Snyder asked the
other two men in the vehicle, petitioner and Smith, to exit
the vehicle and he patted them down. All three men were
asked to sit on the curb while he searched the vehicle.
During the search, Officer Snyder seized $763.00 from
the glove compartment and five plastic glassine baggies
containing suspected cocaine from inside an armrest in the
backseat.’ Officer Snyder questioned all three men about
* The armrest in the backseat was the type that goes up
and down. At the time of the stop, the armrest was in the
4a
ownership of the drugs and money, and told the three
Se atenensanaleeiammieiindaantie
was going to arrest them all. None of the men offered any
information regarding the ownership of the drugs and/or
money, and all three were placed under arrest and
transported to the police station.
oatmeal 4:00 and 5:00 a.m., Officer Snyder
met with petitioner and, following a waiver of his Miranda
rights,’ obtained an oral and written confession in which
petitioner acknowledged that the cocaine belonged to him,
that he and his friends were going to a party in
Westminster, and that he intended to sell it or “Use it for
sex.” Petitioner maintained that neither Partlow nor Smith
knew of the drugs. Partlow and Smith were released.
At trial, during a suppression hearing, petitioner's
counsel argued that petitioners’s arrest was unlawful
ori iti When Officer
ght position and flat against the seat.
re pulled down the armrest he found the drugs, which
had been placed between the armrest and the back seat of
the car and, absent the pulling down of the armrest, were
not visible. :
3 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966).
“It is not altogether clear whether the suppression issue
was addressed during the trial itself when the admission
into evidence of the confession was sought, or at a
separate suppression hearing, or both. Petitioner's brief
states “at the hearing on the motion to suppress....
Respondent did not challenge that statement.
Sa
because it was not supported by probable cause and that
his confession should be suppressed as the unlawful fruit
of an illegal arrest. The trial court judge agreed with the
State that Officer Snyder “had probable cause to make the
arrest.” After a jury trial, petitioner was found guilty and
sentenced to ten years incarceration without the possibility
of parole.* The Court of Special Appeals affirmed the
conviction.
II. Discussion
a. Probable Cause
In the case sub judice, petitioner is not contending that
the vehicle was stopped, or that the vehicle was searched,
in violation of the Fourth Amendment’s® guarantee against
unreasonable searches and seizures. Petitioner’s only
contention is that the police officer did not have probable
Cause to arrest him; therefore, his confession was the fruit
* As stated, supra, petitioner’s sentence was modified
to a ten-year sentence with the possibility of parole.
* The Fourth Amendment of the United States
Constitution states:
“The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.”
6a 7a
been committed or attempted and that such person
has committed or attempted to commit a felony
whether or not in the officer’s presence or view.”
We examined the application of probable cause to a
warrantless arrest in Collins v. State, 322 Md. 675, 589
A.2d 479 (1991), when we stated:
of an illegal arrest.
In order for a warrantless arrest to be legal it must be
based upon probable cause. We have held that a police
officer can arrest an accused without a warrant if the
officer has probable cause to believe that a felony has been
or is being committed by an alleged offender in the
officer’s presence. Woods v. State, 315 Md. 591, 611-12,
556 A.2d 236, 246 (1989); Nilson v. State, 272 Md. 179,
184, 321 A.2d 301, 304 (1974). Maryland Code (1957,
1996 Repl.Vol.), Article 27, section 594B, then stated, in
relevant part:’
Ҥ 594B. Arrests without warrants generally.
(a) Arrest for crime committed in presence of
officer.--A police officer may arrest without a warrant
any person who commits, or actempts to commit, any
felony or misdemeanor in the presence of, or within
the view of, such officer.
(b) Arrest for crime apparently committed in
presence of officer.--A police officer wie has
probable cause to believe that a felony or
misdemeanor is being committed in the officer’s
presence or within the officer’s view, may arrest
without a warrant any person whom the officer may
reasonably believe to have committed such offense.
(c) Arrest for crime committed generally.--A police
officer may arrest a person without a warrant if the
officer has probable cause to believe that a felony has
7 Article 27, section 594B was repealed by Acts of
2001, Chapter 10, section 1, effective October 1, 2001.
Present provisions in respect to arrest generally are found
in Title 2 and Subtitle 2 of the Criminal Procedure Article.
“Probable cause, we have frequently stated, is a
nontechnical conception of a reasonable ground for
belief of guilt. Doering v. State, 313 Md. 384, 403,
545 A.2d 1281 (1988); Edwardsen v. State, 243 Md.
131, 136, 220 A.2d 547 (1966). A finding of
probable cause requires less evidence than is
necessary to sustain a conviction, but more evidence
than would merely arouse suspicion. Woods, supra,
315 Md. at 611, 556 A.2d 236; Sterling v. State, 248
Md. 240, 245, 235 A.2d 711 (1967); Edwardsen,
supra, 243 Md. at 136, 220 A.2d 547. Our
determination of whether probable cause exists
requires a nontechnical, common sense evaluation of
the totality of the circumstances in a given situation
in light of the facts found to be credible by the trial
judge. State v. Lemmon, 318 Md. 365, 379, 568 A.2d
48 (1990); Doering, supra, 313 Md. at 403-04, 545
A.2d 1281. Probable cause exists where the facts and
circumstances taken as a whole would lead a
reasonably cautious person to believe that a felony
had been or is being committed by the person
arrested. Woods, supra, 315 Md. at 611, 556 A.2d
236; Stevenson v. State, 287 Md. 504, 521, 413 A.2d
1340 (1980); Duffy v. State, 243 Md. 425, 432, 221
A.2d 653 (1966). Therefore, to justify a warrantless
arrest the police must point to specific and articulable
facts which, taken together with rational inferences
8a
from those facts, reasonably warranted the intrusion.
Lemmon, supra, 318 Md. at 380, 568 A.2d 48.”
Id. at 680, 589 A.2d at 481. To determine whether an
officer had probable cause in a specific case, “the
reviewing court necessarily must relate the information
known to the officer to the elements of the offense that the
officer believed was being or had been committed.”
DiPino v. Davis, 354 Md. 18, 32, 729 A.2d 354, 361
(1999).
Petitioner was charged and eventually convicted of
violating sections 286--possession of cocaine with intent
to distribute--and 287--possession of cocaine.® In order for
petitioner’s arrest to be valid, the officer must have had
probable cause at the time of the arrest to believe that
petitioner was in ion of cocaine. Possession is
defined in Maryland Code (1957, 1996 Repl.Vol., 2001
Supp.), Article 27, section 277(s) as “the exercise of actual
or constructive dominion or control over a thing by one or
more persons .” This statute recognizes, as we have held,
that possession may be constructive or actual, exclusive or
joint. State v. Leach, 296 Md. 591, 596, 463 A.2d 872,
874 (1983).
While the quantum of evidence is different, we have
discussed possession issues in several sufficiency of the
evidence cases, which are instructive in respect to the
definition of possession. In Garrison v. State, 272 Md.
123, 321 A.2d 767 (1974), we examined the meaning of
8 Maryland Code (1957, 1996 Repl.Vol., 2001 Supp.),
Art. 27 §§ 286 and 287.
9a
- “possession” in reference to section 287 of Arti ,
Although we said that the State was not required ewe
knowledge by the defendant,'° we found that in order for
rn State to establish possession it must establish evidence
a oe show directly or support a rational inference
e accused did in fact exercise some dominion or
control over the prohibited narcotic drug in the sense
contemplated by the statute, i.e., that she exercised some
— ning or directing influence over it.” Jd. at 142, 321
.2d at 777. We held that the State had not met the
standard of legal sufficiency because there was no
9
We note that Garrison was
. concerned with the
sufficiency of the evidence at trial. In examining probable
meee for an arrest, we have stated that “[t]he rule of
probable cause is a non-technical conception of a
‘ reasonable ground for -belief of guilt, requiring less
evidence for such belief than would justi icti
more evidence than that which acces
suspicion.” Doering v. State, 313 Md. 384, 403, 545 A.2d
1281, 1290 (1988). While the State is required to provide
more evidence at trial for conviction than for a probable
ae showing in respect to arrest at a motion’s hearing
elements of an offense are the same whether a police
officer is making a probable cause determination prior to
an arrest or whether the State is trying to prove the
elements at trial to establish the guilt of a defendant.
10 .
This was later overruled b
y Dawkins v. State, 313
a 638, 547 A.2d 1041 (1988) in which we held that the
te must prove that the defendant had knowledge of the
controlled dangerous substance to prove possession.
10a
evidence which directly or inferentially demonstrated that
the defendant had exercised actual or constructive
dominion or control, solely or jointly, over the narcotics.
In State v. Leach, 296 Md. 591, 463 A.2d 872 (1983),
Stephen Leach and his brother, Michael Leach, were
convicted of possession of a controlled dangerous
substance. On appeal, Stephen Leach challenged the
sufficiency of the evidence in his conviction for
possession. The essential question was whether Stephen
constructively possessed drugs and drug paraphernalia
found in Michael’s apartment at 3712 Erdman Avenue in
Baltimore City. Prior to their arrest, Stephen and Michael
had been the objects of ongoing police surveiliance.
Stephen had been seen entering and leaving the premises
at 3712 Erdman Avenue. Relying on information from an
informant, the police obtained a search warrant for 3712
Erdman Avenue. On February 27, 1980, the police
arrested Michael outside of the premises and then searched
the one-bedroom apartment. In the bedroom, police found
drugs and drug paraphernalia. Also found in the apartment
were an electric bill and a telephone bill, both in Michael’s
name. A 30-X magnifier and a large table scale were
located on the kitchen table. The police then proceeded to
the 4000 block of Poursé Avenue, where they arrested
Stephen while he was walking a dog. Stephen gave his
address as 3712 Erdman Avenue at booking and before a
Commissioner. The Department of Motor Vehicles had
3712 Erdman Avenue as Stephen’s address but his
employer had two addresses for Stephen, 3712 Erdman
Avenue and 4002 Pourse Avenue. Rita Cushner testified
that Stephen lived at 4002 Pourse Avenue with her and her
daughter from a few weeks before Thanksgiving in 1979
until late May of 1980.
lla
Finding that the evidence against Stephen was
insufficient to establish that he exercised dominion or
control over the narcotics, we stated:
“Here the fact finding that Michael was the occupant
of the Premises precludes inferring that Stephen had
joint dominion and control with Michael over the
entire apartment and over everything contained
anywhere in it. Even though Stephen had ready
access to the apartment, it cannot be reasonably
inferred that he exercised restraining or directing
influence over PCP in a closed container on the
bedroom dresser or over paraphernalia in the
bedroom closet. If one assumes that the scales and
magnifier found in plain view in the kitchen at the
time of the search were always kept there, still those
items are intrinsically innocuous. They become
significant by association with drugs or cutting
agents.”
Id. at 596, 463 A.2d at 874. We held that the evidence
was legally insufficient to convict Stephen.
In Dawkins v. State, 313 Md. 638, 547 A.2d 1041
(1988), Leonard Dawkins was arrested in a hotel room and
charged with possession of heroin and possession of
controlled paraphernalia. At trial, after the presentation of
evidence, the court instructed the jury on the elements of
possession. Dawkins requested that the court instruct the
jury that knowledge is an element of possession; the court
declined. We reversed, holding that knowledge is an
element of possession. Judge Eldridge, writing for the
Court, stated:
“Under the Maryland statute, § 277(s) defines
‘possession’ as ‘the exercise of actual or constructive
dominion or control over a thing by one or more
12a
ns.’ (Emphasis added). Some courts, in
ae similar language, construe ‘dominion and
control’ to require ‘knowledge.’ For example, in
State v. Burns, 457 S.W.2d 721 (Mo.1 970), the
Missouri Supreme Court determined that
‘possession’ included a knowledge element. It
reasoned that in order to ‘control’ an object, the
defendant must know of its existence. The court
stated: ‘Knowledge of the existence of the object is
essential to physical control thereof with the intent to
exercise such control and such knowledge must
necessarily precede the intent to exercise or the
exercise of such control.’ 457 S.W.2d at 724.
“We find persuasive the reasoning of the
above-reviewed cases. In particular, we agree that an
individual ordinarily would not be deemed to exercise
‘dominion or control’ over an object about which he
is unaware. Knowledge of the presence of an object
is normally a prerequisite to exercising dominion and
control.”
Id. at 648-49, 547 A.2d at 1046 (footnote omitted).
Therefore, in order to prove “possession,” the State
must prove the elements of “dominion or control and
“knowledge.” These elements were applied in two other,
more recent, sufficiency of the evidence cases, White v.
State, 363 Md. 150, 767 A.2d 855 (2001) and Taylor v.
State, 346 Md. 452, 697 A.2d 462 (1997). In White, Sean
White was a passenger in a vehicle that was stopped by a
Maryland State trooper for a traffic offense. After
conducting a pat-down of the driver, on whom the state
trooper discovered marijuana, the state trooper searched
the vehicle. In the trunk of the vehicle, in a sealed box
containing pots and pans, the state trooper discovered 194
l3a
grams of cocaine. Both the driver/owner of the vehicle
and White were arrested at that time. Among other
charges, White was charged with possession of cocaine
and possession of cocaine with intent to distribute. White
was convicted and his conviction was affirmed by the
Court of Special Appeals.
Before this Court, White contended that there was not
sufficient evidence to support his conviction for
possession of the cocaine found in the box of pots and
pans located in the trunk. Writing for the Court, Judge
Harrell stated:
“There is a substantial question whether the evidence
in this case establishes beyond a reasonable doubt
that Petitioner [White] had knowledge of the
presence of the cocaine hidden in a sealed.box of pots
and pans found inside the trunk of Charity’s vehicle.
Although Petitioner, by virtue of being a passenger in
Charity’s vehicle, was in close proximity to the
cocaine, on this record he did not have a possessory
right in, or control over, the vehicle. Additionally,
Charity’s behavior, when contrasted with
Petitioner’s, is distinguishable. Charity, who
arguably knew that 194 grams of cocaine were in the
trunk of his automobile, was so nervous that Lewis
[the state trooper] claimed he could see Charity’s
carotid artery pulsing in his neck and his heart
pounding through his shirt. No such dramatic
observations, however, were attributed to Petitioner,
who claims ignorance as to the existence of the
contraband. Although Lewis did state that Petitioner
would not look at him during questioning, his
compatriot, Corporal Bromwell, noted nothing
unusual about Petitioner’s behavior, and testified that
14a
Petitioner remained quiet or engaged in small talk
while Lewis searched Charity’s vehicle.
“Assuming arguendo that there was evidence in the
record sufficient to establish beyond a reasonable
doubt the knowledge requirement for possession, we
conclude nonetheless that there was not sufficient
evidence establishing that Petitioner exercised
dominion and control over the cocaine....
“A fter reviewing the record in White’s case in a light
most favorable to the State, we hold the
circumstantial evidence upon which the State’s case
rested was insufficient as a matter of law to support,
beyond a reasonable doubt, that Petitioner exercised
dominion or control over the cocaine found inside the
pots and pans box in the trunk of Charity’s
automobile. If the rational fact finder was not
permitted to infer reasonably in Leach [supra] that
Stephen exercised dominion and control over the PCP
found in a closed container on a bedroom dresser in
an apartment to which he had ready access, than a
rational fact finder may not infer in the present case
that Petitioner had dominion and control over the
cocaine found in a sealed box in the trunk of a vehicle
in which he apparently had limited access and no
possessory interest. Having no such interest in the
vehicle places Petitioner in a somewhat similar
situation to that of the defendant in Livingston [v.
State, 317 Md. 408, 564 A.2d 414 (1989) ], for the
mere existence of cocaine located in the trunk of
Charity’s vehicle was not sufficient to prove that
Petitioner, a front seat passenger, exercised dominion
and control over the contraband. Although Lewis’s
lSa
testimony regarding the air fresheners an
co-defendants’s inconsistent stories might wd =
basis for a strong suspicion as to Petitioner’s
culpability, the evidence, and reasonable inferences
drawn therefrom, does not reach the standard of guilt
beyond a reasonable doubt. Without more, we hold
that the Petitioner’s convictions for importation of
cocaine, possession of cocaine, and possession of
cocaine with the intent to distribute cannot stand.”
White, 363 Md. at 164-67, 767 A.2d at 863-64 (footnote
omitted) (some emphasis added).
In 7 aylor, the Ocean City police entered a motel room
after receiving a complaint about a possible controlled
dangerous substance violation. Upon entering the room
Richard Taylor, petitioner before this Court, was lying on
the floor with his face away from the door.'' The police
received permission to search the room for “dope,” and the
police discovered a bag of marijuana in two different bags
neither belonging to Taylor, and rolling papers in the
— _ _ of ~~ other occupants of the room. Taylor
af os
poms possession of marijuana and he was
After reviewing the sufficiency of the evidence, we held
that the evidence was insufficient to establish possession
Judge Raker, writing for the Court, stated: |
“We agree with Taylor that, under the facts of this
case, any finding that he was in possession of the
marijuana could be based on no more than
speculation or conjecture. The State conceded at trial
"' The police testified that they did not know whether
Taylor was sleeping or awake.
16a
that no marijuana or paraphernalia was found on
Petitioner or in his personal belongings, nor did the
officers observe Petitioner or any of the other
occupants of the hotel room smoking marijuana.
Viewing the evidence in the light most favorable to
the State, Officer Bernal’s testimony established only
that Taylor was present in a room where marijuana
had been smoked recently, that he was aware that it
had been smoked, and that Taylor was in proximity
to contraband that was concealed in a container
belonging to another.
“The record is clear that Petitioner was not in
exclusive possession of the premises, and that the
contraband was secreted in a_ hidden place not
otherwise shown to be within Petitioner’s control...
Possession requires more than being in the presence
of other persons having possession; it requires the
exercise of dominion or control over the thing
allegedly possessed...
“ The evidence in this case does not establish that
Taylor had knowledge of the presence of the
marijuana concealed in Myers’s carrying bags.
“As clearly indicated by Dawkins, without knowledge
of the presence of marijuana in the room, it is not
possible for Petitioner to have exercised dominion or
control over the marijuana, another required
ingredient of the crime of possession. The facts and
circumstances, considered in the light most favorable
to the State, do not justify any reasonable inference
that Petitioner had the ability to exercise, or in fact
did exercise dominion or control over the contraband
found in the room. Although the evidence in this
case might form the basis for a strong suspicion of
17a
Petitioner’s guilt, suspicion is insufficient to support
a conviction. ‘[MJere proximity to the drug, mere
presence on the property where it is located, or mere
association, without more, with the person who does
control the drug or property on which it is found, is
insufficient to support a finding of possession.’
Murray v. United States, 403 F.2d 694, 696 (9th
Cir.1969) (internal quotation marks and citations
omitted). In other words, there must be additional
proof of knowledge and control to sustain a
conviction for possession.
“In sum, the evidence presented in this case was
insufficient to establish that Taylor was in possession
of the marijuana seized from Myers’s carrying bags.
Taylor’s presence in a room in which marijuana had
been smoked, and his awareness that marijuana had
been smoked, cannot permit a rational trier of fact to
infer that Taylor exercised a restraining or directing
influence over marijuana that was concealed in
personal carrying bags of another occupant of the
room. — Because Petitioner was in joint rather than
exclusive possession of the hotel room, his mere
proximity to the contraband found concealed in a
travel bag and his presence in a room containing
marijuana smoke were insufficient to convict him.”
T aylor, 346 Md. at 459-63, 697 A.2d at 465-68 (footnote
omitted) (alteration in original).
While the cases we have discussed above involve the
sufficiency of the evidence, they, nonetheless, establish the
law for determining some possession issues, even at the
probable cause to arrest stage. Moreover, we have also
had occasion to apply the elements of possession to cases,
18a
like the case at bar, where the probable cause to make an
arrest for possession is being challenged. In Livingston v.
State, 317 Md. 408, 564 A.2d 414 (1989), Wesley
Livingston was one of three people ~ a rr aa on
stopped for speeding. Livingston, who was not the own
of the vehicle, was sitting in the backseat. During the stop
for speeding, the state trooper saw two marijuana seeds on
the floor of the front passenger’s side. The state trooper
arrested all three occupants of the car and upon searching
Livingston pursuant .to the arrest, the state trooper
discovered cocaine and marijuana in Livingston s pocket.
Livingston was charged with possession of cocaine with
intent to distribute, possession of cocaine, and possession
of marijuana. He moved to suppress the evidence as the
product of an illegal arrest but the motion was denied by
the trial court. Livingston was convicted on all three
counts and he appealed.
While we found that the two marijuana seeds on the
floor provided the state trooper with probable cause that a
misdemeanor was being committed in his presence, the
question became who could the state trooper arrest for the
offense. We held that the two marijuana seeds on the floor
in the front of the vehicle did not provide the state trooper
with probable cause to arrest Livingston and then conduct
a search incident to that arrest. We stated: |
“Merely sitting in the backseat of the vehicle,
Livingston did not demonstrate to the officer that he
possessed any knowledge of, and hence, any
restraining or directing influence over two marijuana
seeds located on the floor in the front of the car.
“Without more than the mere existence of two
marijuana seeds located in the front of the car, we
hold that the police officer lacked probable cause to
19a
' arrest Livingston, a rear seat passenger, for
possession of marijuana. Thus, Livingston’s arrest
was illegal, and the contraband seized in the search
arising out of that arrest must be suppressed.”
Id. at 415-16, 564 A.2d at 418 (footnote omitted).
We further examined when a police officer has probable
cause to make a warrantless arrest in Collins v. State, 322
Md. 675, 589 A.2d 479 (1991). On September 20, 1988,
at 3:00 a.m., Officer Holmes of the Salisbury Police
Department noticed five men standing about five feet from
a Mustang that was parked in the entrance to a car
dealership. The Mustang was not owned by Collins.
Officer Holmes approached the men and asked what they
were doing. The driver of the Mustang, Steven Lewis,
stated that they were looking at the BMWs. Officer Ewing
arrived on the scene to assist Officer Holmes. Officer
Ewing saw a 35 mm film canister on the rear seat of the
Mustang and he asked one of the men to retrieve the
canister for him. Inside the canister, Officer Ewing found
over twenty cellophane wrapped packets containing
cocaine. Officers Ewing and Holmes then arrested all five
men for possession of cocaine. Collins alleged at a
suppression hearing that there was not probable cause for
his arrest. The trial court denied his suppression motion
and Collins was convicted of possession of cocaine.
Before this Court, Collins once again asserted that there
was not probable cause for his arrest. Specifically, relying
on Livingston, supra, he asserted that his mere proximity
to incriminating evidence, or to an offender, is not enough
for a finding of probable cause for arrest. Furthermore,
Collins asserted that there was no further factual basis to
connect him to the drugs or to having committed any
crime. We first discussed the United States Supreme
20a
Court case of United States v. Di Re, 332 U.S. 581, 68
S.Ct. 222, 92 L.Ed. 210 (1948), in which the Supreme
Court had examined the arrest of Di Re, who was seated in
the passenger seat of a vehicle from which an informant
had purchased counterfeit gasoline ration coupons from
the driver and the backseat passenger was seen holding
gasoline ration coupons. The police arrested and searched
all three men. The Supreme Court held that Di Re’s mere
presence in a vehicle involved in criminal activity, without
more, did not cause him to lose his right to be free from a
search of his person. We then discussed our holding in
Livingston, supra, and we held that there was not probable
cause to arrest Collins for possession. We stated:
“Considering the totality of the circumstances, we
conclude that the mere presence of a closed film
canister in a car found to contain cocaine was legally
insufficient to support the requisite probable cause to
arrest Collins as he stood outside of the vehicle. No
testimony suggested that he arrived at the lot in the
car, that he had even been in the vehicle, or that he
knew the suspected cocaine was in the back seat of
the car. Even if the police had probable cause to
arrest Lewis or Parker for unlawful possession, there
was no probable cause to arrest Collins. As there was
no e idence which criminally linked Collins to either
the car, or to the film canister, there was no probable
cause to believe that he committed or attempted to
commit a felony as required by Art. 27, § 594B.”
Collins, 322 Md. at 682-83, 589 A.2d at 482.
As stated, supra, to determine whether a police officer
had probable cause to make a warrantless arrest, we
evaluate the totality of the circumstances as to whether the
facts and circumstances, with rational inferences derived
2la
therefrom, would lead a reasonable person to believe that
a felony has been or is being committed. In a specific:
case, we apply the elements of the alleged offense to the
facts and circumstances of that case to determine whether
the police officer had probable cause to make a
warrantless arrest of a particular individual for that
specific offense.
In the case sub judice, applying the facts and
circumstances of this case to the elements of possession
requiring “knowledge” of the controlled dangerous
substance and “dominion or control” over the substance
and Telying on the holdings of our previous cases,
specifically our holding in Livingston, we find that the
police did not have probable cause to arrest petitioner.
Similar to the situation in Livingston, where the defendant
was sitting in the backseat and two marijuana seeds were
In open view on the floor in the front seat, petitioner in this
case was sitting in the front seat and the cocaine was found
hidden from view in the armrest in the back seat of the car.
Without additional facts available to the officer at that
time that would tend to establish petitioner’s knowledge
and dominion or control over the drugs, the mere finding
of cocaine in the back armrest when petitioner was a front
seat passenger in a car being driven by its owner is
insufficient to establish probable cause for an arrest for
possession.'? As we stated in Livingston:
= Under respondent’s reasoning, if contraband was
found in a twelve-passenger van, or perhaps a bus or other
kind of vehicle, or even a place, i.e., movie theater, the
police would be permitted to place everyone in such a
vehicle or place under arrest until some person confessed
~
22a
“Merely sitting in the backseat of the vehicle,
Livingston did not demonstrate to the officer that he
possessed any knowledge of, and hence, any
restraining or directing influence over two marijuana
seeds located on the floor in the front of the car.
“Without more than the mere existence of two
marijuana seeds located in the front of the car, we
hold that the police officer lacked probable cause to
arrest Livingston, a rear seat passenger, for
ion of marijuana.”
Livingston, 317 Md. at 415-16, 564 A.2d at 418 (footnote
_—~ points to the additional fact that the police
officer saw a large amount of rolled up money in the glove
compartment located in front of petitioner. Money,
without more, is innocuous. In Leach, we held that there
was insufficient evidence to convict Stephen Leach, the
brother of Michael Leach, when the drugs were found in
Michael Leach’s bedroom. In that case, the police had
also discovered a large table scale and a magnifier in plain
view on the kitchen table. We held that the table scale and
magnifier were intrinsically innocuous and that they only
became significant when. associated with drugs. The
money in the case at bar was not in the plain view of the
police officer or petitioner; rather it was located in aclosed
glove compartment and only came into view when the
glove compartment was opened by the car’s owner/driver
in response to the officer's request for the car’s
te moly .
to being in possession of the contraband. Simp stated,
policy of arresting everyone until somebody confesses 1s
constitutionally unacceptable.
23a
registration. There are insufficient facts that would lead a
reasonable person to believe that petitioner, at the time of
his arrest, had prior knowledge of the money or had
exercised any dominion or control over it. We hold that a
police officer’s discovery of money in a closed glove
compartment and cocaine concealed behind the rear
armrest of a car is insufficient to establish probable cause
for an arrest of a front seat passenger, who is not the
owner or person in control of the vehicle, for possession of
the cocaine.
As noted, supra, we hold that there was not probable
cause to arrest petitioner at the time of the routine traffic
stop. Under the “fruit of the poisonous tree doctrine,”"
evidence tainted by Fourth Amendment violations may not
be used directly or indirectly against the accused. See
Miles v. State, 365 Md. 488, 781 A.2d 787 (2001). The
exclusionary rule “applies to any ‘fruits’ of a constitutional
violation-- whether such evidence be tangible ... or
confessions or statements of the accused obtained during
an illegal arrest and detention.” United States v. Crews,
445 U.S. 463, 470, 100 S.Ct. 1244, 1249, 63 L.Ed.2d 537,
545 (1980) (footnote omitted).
'® The “fruit of the poisonous tree” doctrine is an aspect
of the exclusionary rule, a judicially imposed sanction for
violations of the Fourth Amendment right against
improper arrests and unreasonable searches and seizures
in prosecutions, and requires courts to suppress evidence
that is the product of unlawful governmental activity.
Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d
1081 (1961); Ferguson v. State, 301 Md. 542, 483 A.2d
1255 (1984).
24a
b. Attenuation
The State has not argued that the confession was
admissible as a result of attenuation. We do not believe
that the parties have properly presented that issue to this
Court. Even if properly presented, the concept would not
be applicable under the circumstances here present.
In that respect, we turn now to whether, if attenuation
had been properly presented, the taint of the illegal arrest
was sufficiently attenuated to permit the admission into
evidence of petitioner’s confession, which would
otherwise be barred as the fruit of a poisonous tree because
the arrest was effectuated without probable cause. See
Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9
L.Ed.2d 441 (1963).
In her dissenting opinion in Miles, Judge Raker.
examining the attenuation doctrine, stated:
“It is black letter law that once a defendant has
demonstrated the existence of a primary illegality"* ...
the burden shifts to the government to prove that the
resulting evidence was not derived from that
illegality... :
“The government can demonstrate that the taint of the
primary illegality has been purged in three ways: (1)
by demonstrating that the causal nexus between the
illegality and the subsequently discovered evidence is
sufficiently attenuated so that the taint has been
dissipated, see Wong Sun, 371 U.S. at 487-88, 83
4 In the case at bar, the warrantless arrest was
effectuated without probable cause.
25a
S.Ct. at 417, 9 L.Ed.2d 441, (2) by demonstrating that
the subsequently discovered evidence was obtained
from a source independent of the primary illegality,
see United States v. Wade, 388 U.S. 218, 242, 87
S.Ct. 1926, 1940, 18 L.Ed.2d 1149 (1967); or (3) by
demonstrating that, absent the illegality, the State still
inevitably would have discovered the later evidence.
See Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct.
2501, 2509, 81 L.Ed.2d 377 (1984)....'°
“In examining the Wong Sun attenuation doctrine,
courts repeatedly utilize consequential language, such
as ‘exploitation,’ “direct result,’ ‘chain of events,’
‘link,’ ‘nexus,’ ‘impetus,’ ‘connection,’ ‘causation,’
‘inducement,’ ‘basis,’ and ‘product’ to describe the
necessary relationship between a primary illegality
and evidence derived therefrom. In assessing
attenuation, courts examine the facts and
circumstances of each case in considering four
factors: the giving of Miranda warnings; the temporal
proximity of the illegality to the confession; the
presence of intervening circumstances; and the
purpose and flagrancy of the illegal police conduct.
See Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct.
| '’ The doctrines of independent source and inevitable
discovery, two additional ways for the government to
demonstrate that the taint of the primary illegality has been
purged, have not been raised in this case.
26a
2254, 2261-62, 45 L.Ed.2d 416 (1975).”"°
Miles, 365 Md. at 575-78, 781 A.2d at 837-39 (some
citations omitted) (footnote omitted). In the case sub
judice, we hold that there was no attenuation between
petitioner’s arrest and his confession that would
sufficiently purge the taint of the illegal arrest.
The giving of the Miranda warnings, the first of the
Brown factors, does not, alone, attenuate the taint of an
illegal arrest.'’ Nor does the Brown temporal proximity
attenuator provide a clear-cut test for determining at what
point the taint has been purged by the lapse of time. In
Ferguson v. State, 301 Md. at 550, 483 A.2d at 1259
(1984), this Court stated:
“(T]he Supreme Court has understandably not
articulated any mathematically precise test for
determining at what point the taint has been purged
by the lapse of time. Recent decisions, however,
indicate that time spans ranging from two hours to six
‘© We adopted the test for attenuation, as set forth in
Brown, in Ferguson v. State, 301 Md. 542, 549, 483 A.2d
1255, 1258 (1984). In Scott v. State, 366 Md. 121, 149,
782 A.2d 862, 878 (2001), we stated that, “No one factor
is dispositive .”
" In Brown, 422 U.S. at 603, 95 S.Ct. at 2261, 45
L.Ed.2d at 427, the Supreme Court held the receiving of
Miranda warnings to be an important factor in assessing
the voluntariness of a confession, but also stated that a
defendant’s waiver of Miranda rights alone to be
insufficient to purge the taint of a defendant’s illegal
arrest.
27a
hours between an unlawful arrest and the challenged
evidence constitute insufficient attenuation. Because
a lengthy detention can be used to exploit an illegal
arrest at least as easily as a brief detention, the
temporal Proximity factor has been labeled
‘ambiguous’ ....” [Citations omitted. ]
In the case sub judice, even though petitioner was given
and waived his Miranda rights prior to his confession, he
nonetheless, confessed in the station house just over two
hours after the illegal arrest. As stated, supra, while the
timing of the confession is not dispositive as to the issue
of attenuation, the mere two-hour passage of time, during
which petitioner remained in custody, does not establish
attenuation. In this case, the traffic stop occurred at
approximately 3:00 a.m., the arrest shortly thereafter, and
the three men were transported to the station house. It was
not long after the arrival at the Station house, after his
illegal arrest, that petitioner was placed in a room,
questioned, and confessed. The time between the illegal
arrest and the confession is the natural time that likely
would have lapsed in such a situation. The fact that
petitioner confessed approximately two hours after the
police officer at the scene stated that he was going to arrest
all three passengers unless one confessed to being in
possession of the contraband, and then established that he
meant what he said by arresting all of them, does not, as
the majority for the Court of Special Appeals urges,
“generat(e] an issue of attenuation.” In this case, where
the officer had initially established a coercive effect by
Stating that he was going to arrest all three unless one
confessed and had indeed arrested all of them when there
was no initial confession, this two-hour time span
constitutes insufficient attenuation and the fact that
28a
petitioner received and waived his Miranda warnings prior
to his confession does not amount to attenuation. The
coercion began alongside the highway at the point of
arrest, and by its very nature continued to the point of the
custodial confession."
In these circumstances, there was no meaningful
intervening circumstance, the next Brown factor to
consider, that prompted petitioner to confess to the
police.'? Clearly, it was the officer’s arrest of all three
'® When the officer stated that he was going to arrest all
three unless one confessed, and then did so, the coercion
continued, unbroken, from the point of the illegal arrest
during the entire period when all three persons remained
under arrest.
'? “(A]n intervening circumstance is an event that
breaks the causal connection between the unlawful
conduct and the derivative evidence. Properly considered,
the focus should more appropriately be on the accused to
determine whether there was any event that contributed to ©
his ability to consider carefully and objectively his options
and to exercise his free will.” Ferguson, 301 Md. at 551,
483 A.2d at 1259 (citing Taylor v. Alabama, 457 U.S. 687,
102 S.Ct. 2664, 73 L.Ed.2d 314 (1982)) (holding that six
hours between the unlawful arrest and challenged evidence
constituted insufficient attenuation and that there was no
intervening circumstance present when the accused was
visited by his girlfriend and a male companion after the
unlawful arrest but before the confession). But cf. Johnson
v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152
(1972) (intervening circumstance was present when after
29a
men, specifically petitioner’s illegal arrest, that induced
and directly led to petitioner’s confession. The record
shows that petitioner was arrested, transported, and
questioned. The time it took to transport petitioner to the
station house, and the time petitioner remained there prior
to being questioned does not dissipate the taint of the
illegal arrest or constitute an intervening circumstance.
The circumstance, the arresting of all three persons and
keeping them under arrest until one of them confessed,
was a continuing coercive factor. There was never an
intervening circumstance. Petitioner’s confession flowed
directly from the illegal arrest and, moreover, was made
during the continuation of that illegal arrest and its
coercive effect. There was no intervening event; there
was, instead, a continuation of the illegal event.
The final factor under Brown, the purpose and flagrancy
of the illegal police conduct, here the officer’s arrest
without probable cause and transportation of petitioner to
the station house, further supports a lack of attenuation.
‘This factor effectuates the deterrence policy of the
exclusionary rule by providing an incentive for police to
engage in lawful conduct. Obvious examples of
purposeful and flagrant conduct are dragnet operations and
pretextual arrests.” Ferguson, 301 Md. at 552, 483 A.2d
at 1260 (citations omitted). In the case sub Judice, the
apparent purpose of arresting all three men was to exploit
their situation by transporting them to the station house
where, perhaps, one of the men would be prepared to
an unlawful arrest but prior to a lineup identification, a
magistrate committed the accused and conducted the
lineup).
30a
confess in order to clear the other persons arrested. That
is, in fact, what occurred. Officer Snyder stated th: he
would arrest all three men unless someone confessed; he
then arrested all three men, including petitioner, whom he
had no probable cause to arrest, and exploited the
situation, i.e., holding all three men in custody to generate
a confession. This final Brown factor argues against any
attenuation in the case sub judice.
The purpose of the Fourth Amendment exclusionary
rule is to deter unlawful police conduct” and that purpose
would be violated if we were to allow law enforcement
officers to effectuate an illegal arrest and admit into
© In Ferguson, 301 Md. at 548, 483 A.2d at 1258, we
discussed the deterrent effect of the exclusionary rule:
“This standard reflects a deterrence-based policy,
which is ‘[t]he core rationale consistently advanced
... for extending the Exclusionary Rule to evidence
that is the fruit of unlawful police conduct....’ Nix v.
Williams, 468 U.S.[431, 442], 104 S.Ct. 2501,
2508-09, 81 L.Ed.2d 377, 386-87 (1984). Despite
the high societal costs in allowing persons obviously
guilty to go unpunished for their crimes ... the Court
in Wong Sun reasoned that suppression was the
appropriate remedy so as to deter police from
exploiting their illegal conduct.” [Citations omitted. }
[Alteration in original.]}
See also United States v. Calandra, 414 U.S. 338, 94 S.Ct.
613, 38 L.Ed.2d 561 (1974); Terry v. Ohio, 392 U.S. 1, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968); Elkins v. United
States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669
(1960).
3la
evidence a confession from the person illegally arrested.
“Maryland law demands that confessions ‘be shown to be
free of any coercive barnacles that may have attached by
improper means to prevent the expression from being
voluntary.’” Reynolds v. State, 327 Md. 494, 504, 610
A.2d 782, 786 (1992) (quoting Hillard v. State, 286 Md.
145, 150, 406 A.2d 415, 418 (1979)). Emphasizing the
deterrent purposes of the exclusionary rule further
supports another Brown factor, discussed in a subsequent
Supreme Court case, and our holding that unlawful police
conduct, like the conduct in the case sub judice, should not
be rewarded by admitting evidence derived from that
improper police conduct.
In Miles, supra, Judge Battaglia, writing for this Court
noted that, “The United States Supreme Court further
refined its analysis of the attenuation doctrine set forth in
Brown v. Illinois, to include an exploration of
voluntariness. See United States v. Ceccolini, 435 U.S.
268, 276-77, 98 S.Ct. 1054, 1060, 55 L.Ed.2d 268, 277
(1978).”"' Miles, 365 Md. at 523, 781 A.2d at 807. The
*' Ceccolini, which involved the voluntary aspect of a
witness's testimony as a break in the chain of taint flowing
from the unlawful conduct stands for the proposition that.
a person’s action in providing evidence or testimony
should be considered as an intervening factor under the
attenuation doctrine because a person has the “attributes of
will, perception, memory aftd volition.” Ceccolini, 435
U.S. at 277, 98 S.Ct. at 1060, 55 L-Ed.2d at 277 (quoting
Smith v. United States, 324 F.2d 879, 881 (D.C.Cir.1963)).
Thus, we consider, along with the Brown factors, the
voluntariness of petitioner’s confession.
32a
Court of Special Appeals found petiti. .er’s confession to
be voluntary because he waived his Miranda rights and
then made a written and oral confession more than two
hours after the police officer stated that if none of the three
men claimed ownership of the drugs and/or money he was
going to arrest all of them, and then did so. The
intermediate appellate court found petitioner’s statement
to be voluntary under Maryland law, the Due Process
Clause of the Fourteenth Amendment of the United States
Constitution, and Article 22 of the Maryland Declaration
of Rights, and held that the police officer’s statement that
“you are all going to get arrested” did not amount to an
inducement for petitioner's subsequent confession.
Furthermore, the Court of Special Appeals concluded that,
“Appellant’s transfer from the crime scene to the police
station also disrupted the nexus between the alleged
inducement and confession,” and that the time lapse
between the arrest and the confession show that there was
attenuation and voluntariness on the part of petitioner to
confess. We disagree.
Petitioner’s confession was, to reiterate, the product of
his illegal arrest and the improper and continuing coercion
arising from that illegal arrest that existed up until the
point of the confession. Any element of voluntariness
evidenced by petitioner’s waiver of his Miranda rights and
subsequent confession does not, ultimately, dissipate the
taint of the illegal arrest and the continuing improper
coercion. The temporal proximity of the illegal arrest,
along with the police officer’s statement, which effect
continued, does not attenuate, via the confession, the taint
of the illegal arrest. In examining the facts and
circumstances of this case under the Brown factors,
petitioner’s confession at such a proximate time to the
33a
illegal arrest, and while the improper coercive influence
continued, without more facts does not support attenuation
and, therefore, the confession was the fruit of an illegal
arrest.
III. Conclusion
In order for the warrantless arrest of petitioner for
possession to be legal, there must be probable cause as
applicable to the elements of the offense of possession.
Looking at the totality of the circumstances, and after
examining our case law, we conclude that there was not
probable cause to arrest petitioner for possession.
The totality of the circumstances of the facts of this
case, as interpreted under the Brown factors and the further
consideration of voluntariness, clearly show that the
necessary severing of the relationship between the primary
illegality and the evidence derived therefrom to satisfy
attenuation, even if the issue had been properly presented
to this Court, does not exist. While petitioner was given
his Miranda warnings, an application of the remaining
Brown factors and a consideration of voluntariness, in
light of the continuing inducement and the confession’s
proximity in time to the illegal arrest and the coercion,
makes clear that the temporal proximity between the
illegal arrest and the confession, the lack of intervening
circumstances and the purposefulness of the illegal police
conduct all indicate a direct causal nexus between the
illegal arrest for lack of probable cause and petitioner’s
confession used by the State at trial.
Therefore, we hold that the arrest of petitioner was
illegal and that there were insufficient facts and
circumstances to prove petitioner’s confession was
34a
adequately attenuated from the point of his illegal arrest to
the giving of the confession.
JUDGMENT REVERSED; COSTS IN THIS COURT
AND IN THE COURT OF SPECIAL APPEALS TO
BE PAID BY BALTIMORE COUNTY.
RAKER, J., concurring:
I concur in the Court’s opinion and in the judgment.
Like Judge Cathell, writing for the Court, and Judge
Sonner, dissenting in the Court of Special Appeals,
Pringle v. State, 141 Md.App. 292, 785 A.2d 790 (2001),
I am convinced that the police lacked probable cause to
arrest petitioner.” I write separately to express my view
that the dissent misconstrues the rationale of the majority
opinion. |
Contrary to the repeated assertion by the dissent that the
majority erroneously blends the probable cause standard
with the sufficiency of evidence standard, the Court is well
aware of the basic and elemental difference in the quantum
of proof to support probable cause and that which is
necessary to support a conviction. The majority reiterates
and applies the well-recognized standard for probable
cause: “A finding of probable cause requires less evidence
than is necessary to sustain a conviction, but more
evidence than would merely arouse suspicion.” Maj. op. at
2 | agree also with the Court’s conclusion that the
confession was the product of an illegal arrest. See Brown
v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2261-62,
45 L.Ed.2d 416 (1975).
35a
5-6 (quoting Collins v. State, 322 Md. 675, 680, 589 A.2d
479,481 (1991)). Probable cause, a nontechnical common
sense evaluation of the totality of the circumstances,
nonetheless requires a reasonable ground for belief of
guilt. In order to find probable cause for possession of a
controlled dangerous substance, an arresting officer must
have reasonable grounds to believe that a suspect
knowingly exercised dominion or control over the
substance. The majority merely looks to this Court’s
jurisprudence as guidance to elucidate the concept of
possession and its discussion of dominion or control. The
standard for probable cause, on the one hand, ud
sufficiency of the evidence, on the other, remains
unchanged.
Apparently, proximity to concealed drugs is sufficient
for the dissent to find probable cause to arrest. See Diss.
op. at 2, 3 n. 3. Although it may be sufficient under
certain circumstances, the discovery of three men riding in
a car in the early morning hours, with some rolled money
in a closed glove box and drugs hidden from view in a
back arm rest, without more, hardly constitutes probable
cause to arrest a front seat passenger who has no.
possessory interest in the automobile.
I cannot improve upon Judge Sonner’s analysis in his
dissent below: ;
Mindful of Garrison and its progeny, I believe the
. majority has stopped far short of considering whether
Pringle, in any way, knowingly exercised dominion
or control over the secreted contraband, and has
resorted instead to “speculation or conjecture.”
Although Pringle, like Folk, may have been within an
arm's reach of the drugs, in fact, to expose the drugs,
he would have had to stretch his body, maneuver
36a
around the back of his seat, and pull down the arm
rest. And unlike Folk, Pringle was not sitting in a
closed car that emanated the pungent, easily
detectable smell of marijuana, which were critical
facts in Judge Moylan’s analysis sustaiing Folk s
conviction thirty years ago. Although the majority
[of the Court of Special Appeals] attaches some
significance to the large roll of currency found in the
glove compartment, located in front of Pringle s seat,
cash, in and of itself, is innocuous and certainly less
suspicious than the scales and cutting tools
discounted by the Court of Appeals in Leach.
Further, there was no showing whatsoever that
Pringle, as a passenger in the car, had any connection
to, or knowledge of, the money found within the
glove compartment of someone else’s car.
37a
brief consideration to two (more applicable, albeit
distinguishable) opinions concerning the requisite
probable cause for a valid warrantless arrest. For these
reasons, and the reasons articulated herein, | respectfully
dissent.
Arrests without warrants are constitutionally and
statutorily permitted pursuant to Article 27, Section 594B
of the Maryland Code as long as the officer has probable
cause to believe that a crime has been committed and the
officer reasonably believes the arrestee committed that
crime.' Determining whether probable cause exists to
' Maryland Code (1957, 1996 Repl.Vol.), Article 27,
Section 594B, now found at Section 2-202 of the Criminal
Procedure Article, states:
(a) Arrest for crime committed ir presence of
Pringle v. State, 141 Md.App. at 316, 785 A.2d at 804
(internal citations omitted).
BATTAGLIA, J. in which WILNER and HARRELL,
JJ., join, dissenting.
I respectfully dissent.
The majority’s holding that the police officers lacked
le cause to arrest the petitioner for possession of
cocaine is based primarily upon an erroneous blending of
the probable cause standard for an arrest and the
sufficiency of evidence standard for a conviction. While
the majority hastily acknowledges the differences between
these standards, see maj. op. at fn. 9, it devotes most of its
attention to citing and discussing legal authority for issues
involving the standard of legal sufficiency and gives only
police officer.--A police officer may arrest without
a warrant any person who commits or attempts to
commit any felony or misdemeanor in the presence
of, or within the view of, such police officer.
(b) Arrest for crime apparently committed in
presence of officer.--A police officer who has
probable cause to believe that a felony or
misdemeanor is being committed in the officer’s
presence or within the officer’s view, may arrest
without a warrant any person whom the police
- officer may reasonably believe to have committed
the crime. ,
(c) Arrest from crime committed generally.--A
police officer may arrest a person without a warrant
if the officer has probable cause to believe that a
felony has been committed or attempted and that
38a
support a warrantless arrest requires a nontechnical,
common sense evaluation of the totality of the
circumstances in a given situation “in light of the facts and
circumstances found to be credible by the trial judge.” See
State v. Lemmon, 318 Md. 365, 379, 568 A.2d 48, 55
(1990). The police must have “specific and articulable
facts which, taken together with rational inferences from
those facts, reasonably warranted the intrusion.” Jd. at
380, 568 A.2d at 56. It is this “totality of the
circumstances” test under which a probable cause
determination is properly reviewed.
In the present case, the information known to the officer
at the time of the arrest was that three men were traveling
in a vehicle (a Nissan Maxima) around 3:00am with a
large stash of cash in the glove compartment and several
plastic baggies of cocaine in the rear armrest. None of the
men claimed ownership of the drugs or money, yet the
location of the drugs and money in the Nissan Maxima
would lead a reasonable officer in similar circumstances to
believe that the three men had joint constructive
possession over the contraband. In my view, this
establishes probable cause for the arrest of each of the
three individuals, including the petitioner.
What more would the majority require to justify an
arrest? From the emphasis in its opinion, the majority
would seemingly require police officers to consider
whether the evidence gathered would be legally sufficient
for a possession conviction prior to making the arrest.
such person has committed or attempted to commit
a felony whether or not in the officer’s presence or
view.
39a
The majority asserts that “[w]hile the cases we hav
discussed above involve the sufficiency of the i Arma
they, nonetheless, establish the law for determining some
Possession issues, even at the probable cause to arrest
Stage;” yet cites no authority for this proposition. Granted,
the arresting officer must comprehend that which
‘Possession of a controlled dangerous substance” entails 2
The officer Should not, however, be required to base a
determination to arrest on the ability of the State to meet
the standard of legal sufficiency for a conviction: nor
should the reviewing courts measure the propri
arrest by such a standard.* —
. Possession is defined as “the exercise of actual or
constructive dominion or control over a thing by one or
more persons. See Maryland Code (1957, 1996 Repl. Vol.,
2001 Supp.), Article 27, section 277(s).
* The majority opinion discusses several cases involv;
the standard of legal sufficiency for ae aya
Op. pp. 5-16. (discussing, in order, Garrison v. State, 272
Md. 123, 321 A.2d 767 (1974), which held that the State
did not meet the Standard of legal sufficiency for
to establish constructive possession over the narcotics;
Dawkins v. State, 313 Md. 638, 547 A.2d 1041 (1988),
where the Court held that knowledge is an element of
Possession of narcotics which the State must establish and
the court must so instruct the jury; White v. State, 363 Md.
40a
Let me be clear on this point: I agree that the legal
sufficiency of evidence in a of a ne
uires the State to produce evidence of dominion
pe over the narcotic allegedly possessed, and
knowledge therewith, see Moye v. State, 369 Md. 2, 14,
796 A.2d 821, 828 (2002)\(citing Dawkins v. State, 313
Md. 638, 649, 547 A.2d 1041, 1046 (1988)), beyond a
150, 767 A.2d 855 (2001), which held that there existed
insufficient evidence to establish beyond a reasonable
doubt that the petitioner had knowledge of the presence of
cocaine hidden in driver’s trunk; and Taylor v. State, 346
Md. 452, 697 A.2d 462 (1997), which held that
insufficient evidence existed to establish possession of
marijuana because there was no evidence that petitioner
exercised dominion or control over marijuana or had
wledge of its ce). a
gag a er sufficiency of evidence, it is
true that “[m]ere proximity to the drug, mere presence on
the property where it is located, or mere association,
without more, with the person who does control the drug
or property on which it is found, is insufficient to support
a finding of possession.” Moye, v. State, 369 Md. 2, 16,
796 A.2d 821, 829 (2002)(emphasis added)(quoting
Taylor v. State, 346 Md. 452, 460, 697 A.2d 462, 466
(1997)). “There must be additional proof of knowledge
and control to sustain a conviction for possession.
Taylor, 346 Md. at 460, 697 A.2d at 466. Depending on
the surrounding circumstances, proximity to the drug or
association with the persons or property on which illegal
narcotics are found, however, may be sufficient to support
probable cause to just fy a warrantless arrest.
4la
reasonable doubt. | disagree, however, that the degree of
evidence required for a conviction on the charge of
possession of narcotics can be equated to that which is
required of police officers when making probable cause
determinations for warrantless arrests. Courts reviewing
such determinations must not confuse or blend the two
standards: probable cause for an arrest (a lower standard
than legal sufficiency for a conviction) requires the
reasonable belief that the person arrested had committed
Or was committing the felony crime of possession of
narcotics. As we have oft explained, “probable cause is a
nontechnical conception of a reasonable ground for belief
of guilt, requiring less evidence for such belief than would
justify a conviction, but more evidence than that which
would arouse a mere suspicion.” Woods v. State, 315 Md.
591, 611, 556 A.2d 236, 246 (1989)(quoting Nilson v.
State, 272 Md. 179, 184, 321 A.2d 301, 304 (1974)). A
police officer who discovers (at 3 a.m.) three passengers
in a vehicle which contained several baggies of cocaine in
the rear armrest and a large wad of money (arguably,
“drug money”) in the front glove compartment could
reasonably believe that those persons were exercising joint
and constructive possession of the contraband in the
vehicle, were engaging in drug trafficking, or conspiring
to engage in drug trafficking, thus establishing probable
cause for the arrest of each individual. Whether the
State’s Attorney can produce sufficient evidence to
demonstrate, beyond a reasonable doubt, actual or
constructive dominion or control over the narcotics and
knowledge therein to warrant a conviction is another
question--one that is properly left to the prosecutor,
42a
initially, and the trier of fact, subsequently.‘ |
Notwithstanding the majority’s inappropriate emphasis
on cases involving the sufficiency of evidence, the
majority does cite two cases which, while arguably more
on-point, are factually distinguishable. In Livingston v.
State, 317 Md. 408, 564 A.2d 414 (1989), a state trooper
stopped a vehicle for speeding; when the officer spotted
two marijuana seeds on the floor of the front passenger
side, he arrested all three people in a vehicle. Because
Livingston was sitting in the backseat of the vehicle and
could not have reasonably manifested dominion or control
over the two seeds located on the front passenger side
floor, we held that the state trooper could not have
probable cause to arrest Livingston for the cnme. We
stated specifically that “/w/Jithout more than the mere
existence of two marijuana seeds located in the front of the
car, we hold that the police officer lacked probable cause
to arrest Livingston, a rear seat passenger, for possession
of marijuana.” Jd. at 416, 564 A.2d at 418 (emphasis
added). In the case sub judice, the police officer had more
evidence than “the mere existence of two marijuana
seeds”--he had several baggies of cocaine in the rear
armrest and a large wad of money in the glove
* Article 10, Section 34 of the Maryland = grants
prosecutors the authority to “prosecute ... all cases in
which the State may be interested.” Md.Code (1957,
Repl.Vol.), Art. 10, § 34. Maryland State’s Attorneys are
entrusted with broad discretion to “institute and prosecute
criminal causes.” Beverly v. State, 349 Md. 106, 121, 707
A.2d 91, 98 (1998)(quoting Brack v. Wells, 184 Md. 86,
90, 40 A.2d 319, 321 (1944)).
43a
compartment. It strains credulity to analogize the mere
existence of two seeds on the floor of a vehicle to the
secreted wad of cash and baggies of cocaine discovered in
the present case. That two seeds on the front passenger
floor of a vehicle is not enough to establish probable cause
to arrest the back seat passenger does not, in my mind,
equate to a lack of probable cause when a police officer
discovers several baggies of cocaine and a large amount of
cash.
Similarly, the facts which led to a finding of lack of
probable cause in Collins v. State, 322 Md. 675, 589 A.2d
479 (1991), are markedly different than those before us
today. In Collins, police officers observed five men
standing approximately five feet from a Mustang in which
a 35 mm film canister containing cocaine was ultimately
found. /d. at 677, 589 A.2d at 480. The officers arrested
all five men for possession of cocaine. /d. at 678, 589
A.2d at 480. We held that “[cJonsidering the totality of
the circumstances, ... the mere presence of a closed film
canister in a car found to contain cocaine [did not] support
the requisite probable cause to arrest Collins as he stood
outside of the vehicle. No testimony suggested that he
arrived at the lot in the car, that he had even been in the
vehicle, or that he knew the suspected cocaine was in the
back seat of the car.” Jd. at 682-83, 589 A.2d at 482
(emphasis added). In the present case, Pringle was not
only physically in the car, he was seated in proximity to
the cocaine and the money, items about which it was
reasonable to believe that Pringle could have had
knowledge of or control over. Evaluating the totality of
the circumstances, with consideration of the facts as
presented to the officer and rational inferences derived
therefrom, I believe that probable cause existed to justify
44a
the officer’s warrantless arrest of Pringle.
Instead of focusing on the factual scenario presented to
the Court, and more apposite, to the police officer, the
majority chooses to jump to hypothetical extremes in an
attempt to justify its operative heightening of the probable
cause standard. In note 12, the majority erroneously
asserts that if the Court were to adopt the position
proffered by the appellant, then so long as some
contraband was found, probable cause would exist, per se,
and the police could arrest everyone, whether in a
twelve-passenger van or movie theater. ‘Such an assertion
is specious in that the totality of the circumstances test,
itself, precludes these sweeping generalizations, instead,
it requires a review of the specific facts and circumstances
presented to the officer at the scene of the purported crime,
and if questioned, a ruling regarding the officer’s
determination based upon these specific facts and
circumstances. A court should not, and quite simply
cannot, conjecture upon whether probable cause exists in
factual situations not before it. Should I choose to
entertain the majority’s hypotheticals, however, I would
unequivocally assert that baggies of cocaine found in one
area of a packed movie theater, withou. more, would not
constitute probable cause to arrest everyone in the theater,
I believe that the totality of circumstances test, itself,
would preclude a finding of validity in such
The majority’s attempt, however discrete, to incorporate
a higher standard-- that of the sufficiency of evidence-into
the properly-applied probable cause standard will only
serve to burden the law enforcement memo ne og
majority apparently hopes to create prosecutors
police officers by forcing law enforcement officers to
45a
guarantee the sufficiency of evidence for conviction on the
crime of possession prior to initiating a viable arrest. Just
as the standards are different, so are the duties of those
who apply them. In the simplest of terms, police officers
assist in enforcing the laws by arresting suspected
violators, prosecutors assist in enforcing the laws by
attempting to secure State-mandated punishment for these
violations by presenting evidence which demonstrates,
beyond a reasonable doubt, that the accused violated the
law.
Certainly police officers must act in accordance with
constitutional and statutory policies and procedures, but
forcing officers to base their arrests of suspected
wrong-doers upon whether a conviction may stand is
unacceptable. See Woods, 315 Md. at 611, 556 A.2d at
246 (explaining that “whether an arrest for a felony
without a warrant is constitutionally valid necessarily turns
upon whether, at the moment the arrest was made, the
arresting officer or the police acting as a team had
probable cause to make it--whether at that moment the
facts and circumstances within their knowledge and of
which they had reasonably trustworthy information were
sufficient to warrant a prudent man in believing that the
accused had committed or was committing a
felony”)(quoting Nilson, 272 Md. at 184, 321 A.2d at
304). Again, the decision to charge a wrong-doer is
within the discretionary purview of the prosecutors, and
the decision to convict, with the trier of fact. Sufficiency
of evidence for conviction may have similar analytical
markings with probable cause for arrest, but the two are
not syronymous.
In Wilkes v. State, 364 Md. 554, 774 A.2d 420 (2001),
we quoted the United States Supreme Court’s apt
-_
46a
explanation of the conception of probable cause:
In dealing with probable cause, however, as the very
name implies, we deal with probabilities. These are
not technical; they are the factual and practical
considerations of everyday life on which reasonable
and prudent men, not legal technicians, act.
Because many situations which confront officers in
the course of executing their duties are more or less
ambiguous, room must be allowed for some mistakes
on their part. But ihe mistakes must be those of
reasonable men, acting on facts leading sensibly to
their conclusions of probability. The rule of probable
cause is a practical, nontechnical conception
affording the best compromise that has been found
for accommodating ... often opposing interests.
Requiring more would unduly hamper law
enforcement. To allow less would be to leave
law-abiding citizens at the mercy of the officers
whim or ce. |
Id. at 584-85,774 A.2d at 438 (quoting Brinegar v. United
States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93
L.Ed. 1879, 1890-91 (1949)); accord Doering v. State, 313
Md. 384, 403, 545 A.2d 1281, 1290-91 (1988). Again, I
fear that the majority’s holding today will, in effect,
“unduly hamper law enforcement” in this State. Probable
cause, a concept of probabilities, requires only that “the
facts and circumstances within the officer’s knowledge -
justify the belief of a reasonable person that a crime has
been or is being committed” and that the person arrested
participated in the crime. Johnson v. State, 356 Md. 498,
504, 740 A.2d 615, 618 (1999). The practical
considerations on which the officer acted in the case sub
47a
judice were reasonable in light of the evidence discovered.
I would affirm the holding of the Court of Special
Appeals; the circumstances were sufficient to constitute
probable cause to arrest the appellant.
Given that I would find sufficient probable cause to
arrest the appellant, the issue of attenuation would be
immaterial. The majority’s conclusion regarding lack of
probable cause, however, provides the occasion to address
the issue of attenuation, in view of the fact the petitioner
confessed. The occasion to address the attenuation issue
must be exercised by the trial court in the first instance,
rather than an appellate court, because questions of this
nature are necessarily “fact-specific.” See United States
v. Burton, 288 F.3d 91, 100 (3d Cir.2002).
I would be remiss, however, if I neglected to comment
upon the flawed attenuation analysis proffered by the
majority in this case. First, while I agree that “an
individual’s waiver of Miranda warnings taken alone
would be insufficient to purge the taint of the original
unlawful conduct under a Fourth Amendment analysis,” a
person’s voluntary conduct and demonstration of free will
may “purge the primary taint” associated with the
unlawful conduct. See Miles v. State, 365 Md. 488, 526,
781 A.2d 787, 809 (2001)(quoting Brown v. Illinois, 422
U.S. 590, 602, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416, 426
(1975)). As we noted in Miles, the Supreme Court refined
the attenuation doctrine to include an exploration into the
voluntariness of an accused’s conduct. See id. at 523, 781
A.2d at 807 (citing United States v. Ceccolini, 435 U.S.
268, 276-77, 98 S.Ct. 1054, 1060, 55 L.Ed.2d 268, 277
(1978)). Substantively speaRing;tagree with the analysis
of the Court of Special Appeals concerning the
voluntariness of the appellant’s confession and the lack of
48a
coercion on the part of the police officers. The statement
by the police on which the majority solely relies in finding
“coercion” is “you are all going to get arrested.” As the
Court of Special Appeals correctly stated, “[t]his statement
flowed naturally from the attendant circumstances of
finding three suspects within the proximity of the illegal
drugs.” Pringle, 141 Md.App. at 308, 785 A.2d at 799.
Informing the suspects that they were going to be arrested
is not a statement that would be considered exploitative,
threatening, or made in an attempt to induce a confession;
it was a statement of fact concerning the actions the off er
was about to take. With respect to the subsequent
confession, the majority failed to consider the
voluntariness of the petitioner’s conduct, a factor not only
‘ The majority fails to acknowledge that there was a
factual dispute regarding the subsequent part of the alleged
statement made by the police officer. The petitioner
alleges that prior to the arrests, the officer indicated that if
one person would confess the others would be let go. The
officer denies making such a statement. Regardless of
whether the statement occurred, the Court of Special
Appeals correctly points out that it could not have had the
inducing or coercing effect that the petitioner alleges
because the petitioner did not confess in response to this
statement in order to ensure that his friends would not be
arrested. All three men were, in fact, taken into custody;
appellant’s confession occurred more than two hours after
the arrest. Appellant’s allegation “that he confessed so
that his friends would go free is inconsistent with the
_ sequence of events.” Pringle v. State, 141 Md.App. 292,
309, 785 A.2d 790, 800 (2001).
49a
independently mandated by the Ceccolini decision, but one
that may be construed as an intervening factor under
Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254,
2261-62, 45 L.Ed.2d 416, 427 (1975).° Instead, it simply
excused the confession as a “product of his illegal arrest
and the ... continuing coercion arising from that illegal
arrest” without any consideration or deliberation upon the
voluntariness of petitioner’s conduct. See, maj. op. at 27.
For the aforementioned reasons, I respectfully dissent.
Judge WILNER and Judge HARRELL have authorized
me to state that they join in the views expressed herein.
* I further disagree with the majority’s application of the
temporal factor of attenuation analysis and the weight it
affords that factor thereto. As we stated in Miles, there
exists no specific length of time by which the taint of
unlawful conduct will be purged. Miles, 365 Md. at
527-28, 781 A.2d at 810. The majority, on the one hand,
acknowledges that “a lengthy detention can be used to
exploit an illegal arrest at least as easily as a brief
detention”and thus, the temporal factor is “ambiguous,”
see maj. op. at 22 (quoting Ferguson v. State, 301 Md.
542, 550, 483 A.2d 1255, 1259 (1984)); on the other hand,
however, the majority seems to indicate that if “(t]he time
between the illegal arrest and the confession is the natural
time that likely would have lapsed in such a situation,”
then the temporal factor should automatically weigh
against the State. See maj. op. at 22. I disagree with any
implication that the “natural lapse of time” should be a
decisive standard in evaluating attenuation. The temporal
factor cannot be considered in a vacuum; surrounding facts
and circumstances must also be considered.
50a
APPENDIX B
Court of Special Appeals of Maryland.
Joseph Jermaine PRINGLE
v.
STATE of Maryland.
No. 705, Sept. Term, 2000.
Nov. 28, 2001.
Submitted before JAMES R. EYLER, SONNER, and
JAMES S. GETTY, (Ret., specially assigned), JJ.
JAMES R. EYLER, Judge.
Appellant, Joseph Jermaine Pringle, was convicted by
a jury in the Circuit Court for Baltimore County of
possession with intent to distribute cocaine and possession
of cocaine. Finding no error, we shall affirm the
convictions.
Background
In the early morning of August 7, 1999, Officer Jeffrey
Snyder, a Baltimore County police officer, conducted a
routine traffic stop of a Nissan Maxima traveling on High
Falcon Road. The vehicle was speeding, and the driver
was not wearing a seat belt. Officer Snyder asked the
driver for his license and registration, and the driver,
Donte Partlow, complied with the request. Accompanying
Partlow in the car were appellant, sitting in the front
Sla
passenger seat, and Otis Smith, sitting in the backseat.
When Partlow opened the glove compartment to retrieve
the vehicle registration, Officer Snyder noticed “a large
amount of money rolled up.” Officer Snyder did not
inquire about the money in the glove compartment, but
took the license and registration and checked the Maryland
Motor Vehicle Administration computer system for any
outstanding violations. After the computer check did not
reveal any violations, Officer Snyder issued an oral
warning to Partlow, who was standing outside the car. At
this time, a second police car arrived and parked directly
behind Officer Snyder’s car. Officer Snyder then inquired
of Partlow whether he had “any drugs, weapons, [or]
narcotics in the vehicle.” Partlow said he did not. Officer
Snyder then asked whether he could search the vehicle.
Partlow consented to the search, and Officer Snyder asked
appellant and Smith to step out of the vehicle. After
frisking them, Officer Snyder asked all three men to be
seated on the sidewalk curb. In the search, Officer Snyder
seized $763.00 from the glove compartment and five
plastic baggies of cocaine from the backseat. At the
hearing on appellant’s motion for suppression, Officer -
Snyder testified as follows, as to the discovery of the
cocaine:
[DEFENSE COUNSEL]: And you recovered some
suspected narcotics?
[OFFICER Snyder]: Yes.
[Q.]: And they were recovered from inside an
armrest that was located in the back seat?
[A.]: Yes.
[Q.]: Did you have--did you have to lift the armrest
to get to those drugs?
[A.]: The back rest was up. The seat is flat. The
52a
armrest goes up and down. It was in the up position.
I pushed it down and the drugs were subsequently
there.
[Q.]: Okay. So, the back rest was actually in an
upright position?
[A.]: Yes. .
(Q.]: And the drugs were actually found sandwiched
between the armrest and the back seat of the car?
[A.]: Correct.
[Q.]: And you hadn’t seen these drugs when you
initially approached the car?
[A.]: Correct. vee
(Q.]: And you shined your light inside and the first
time you noticed the drugs was when all three
individuals were sitting on the curb, correct?
[A.] Correct.
Officer Snyder questioned the three men as to the
ownership of the drugs and money. He advised all three
passengers of the car that, unless he knew who possessed
the drugs, “you are all going to get arrested.” None of the
passengers offered any information as to the ownership of
the drugs or the money. Officer Snyder, with the
assistance of the other officer at the scene, arrested the
three men and transported them to the police station.
A few hours later, Officer Snyder met with appellant
and, following a waiver of his Miranda’ rights, procured
a written confession. Appellant said that the cocaine
belonged to him and that he and his friends were on their
way to a party where he either intended to sell the cocaine
1 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966).
53a
or “use it for sex.” Appellant went on to say that Partlow
and Smith did not know about the drugs.
At tral, Officer Snyder testified, and his testimony was
similar to that given at the suppression hearing. Irwin
Litopsky, a forensic chemist, also testified and stated that
the baggies discovered by Officer Snyder contained .7
grams of cocaine. Detective Frank Massoni, an expert in
controlled substances, testified that the drugs were
intended to be distributed.
Discussion
1.
Appellant contends that the circuit court erred in
permitting Detective Massoni to express an expert opinion.
The following colloquy is relevant:
[Prosecutor]: Detective, based upon your expertise in
the area of drug distribution, packaging and
recognition, do you have an opinion, based upon that
expertise, within a reasonable degree of scientific
certainty, as to whether the defendant intended to
distribute the cocaine that is enclosed in those five zip
lock baggies?
[Defense Counsel]: Object.
The Court: Overruled.
[Prosecutor]: Do you in fact have an opinion?
[Witness]: My opinion is that the drugs that were
here were going to be distributed in some form or
fashion, either to regain money or to be used for sex.
[Prosecutor]: And how is it you come to that opinion,
officer?
[Witness]: Based on the statement that I have before
54a
me and the fact that, I mean, we have got five baggies
and they are packaged individually, which is the way
they are usually packaged for resale, generally twenty
dollar bags.
The statement referred to was a statement by appellant
that he was going to a party to sell the drugs or exchange
them for sex. _
Appellant contends that the evidence was inadmissible
under Rule 5-704(b) because it constituted an opinion as
to appellant’s mental state at the time of his arrest.
Additionally, according to appellant, the evidence violated
the rule that one witness cannot comment on the
credibility of another witness, in this case, appellant. We
disagree. .
The witness never opined as to appellant’s state of mind
or his credibility. The witness opined that “the drugs were
going to be distributed” with no reference to appellant's
intent or credibility.
Appellant’s reliance on Hartless v. State, 327 Md. 558,
611 A.2d 581 (1992), is misplaced. The expert opinion in
Hartless is distinguishable from Detective Massoni’s
testimony. There, the expert explicitly alluded to the
defendant’s state of mind, writing in a report, “it is my
opinion that David Hartless did not intend to murder the
victim ...”. Hartless, 327 Md. at 572-73, 611 A.2d 581.
Contrary to appellant’s contentions, Detective Massoni did
not explicitly or implicitly testify that appellant intended
to distribute drugs. Rather, Detective Massoni’s opinion
related to the quantity and packaging of the drugs that
were contained in five zip lock baggies each containing
similar amounts of cocaine. The substance of Detective
Massoni’s testimony was consistent with his area of
expertise in drug distribution, packaging, and recognition.
55a
The case of Bohnert v. State, 312 Md. 266, 539 A.2d
657 (1988), upon which appellant relies, is also
distinguishable from the instant case. After being properly
qualified, the expert testified that the victim was abused,
basing her opinion solely on the results of questioning the
victim; no other objective medical tests or medically
recognized syndromes were utilized. Bohnert, 312 Md. at
276, 539 A.2d 657. In effect, the expert was testifying to
the credibility of the victim, the key witness in the case.
The Court recognized, “[i]n a criminal case tried before a
jury, a fundamental principle is that the credibility of a
witness and weight to be accorded the witness’ testimony
are solely within the province of the jury.” Jd. at 277, 539
A.2d 657 (citing Battle v. State, 287 Md. 675, 685, 414
A.2d 1266 (1980)).
In the instant case, appellant did not testify. The jury
had no reason to weigh the testimony and credibility of
appellant. Even if appellant had testified, Detective
Massoni’s remarks would have had a different
consequence than the remarks in Bohnert. Detective
Massoni’s statement that the drugs were going to be
distributed “either to regain money or to be used for sex”
was based on his review of appellant’s written statement.
The mere repetition of appellant’s statement was not a
judgment of appellant’s credibility. In contrast to Bohnert,
Detective Massoni based his expert opinion on several -
factors, including the packaging of the drugs, appellant’s
statement, and his expertise in drug distribution, packaging
and recognition. Similar to our findings in Wilson v. State,
136 Md.App. 27, 764 A.2d 284 (2000), Detective
Massoni’s expert opinion would not impinge on the jury’s
function to weigh credibility. Wilson, 136 Md.App. at
55-68, 764 A.2d 284 (rejecting the argument that four
56a
doctors’ expert opinions were inadmissible comments on
credibility).
2.
Appellant contends that the circuit court erred in
denying his motion to suppress his statement to a police
officer. In support of that contention, he argues that the
statement was (1) the fruit of an illegal arrest, and (2) the
result of an improper inducement.
Probable Cause
The United States Supreme Court instructs us that “the
usual traffic stop is more analogous to a so-called “Terry
stop,’ ... than to a formal arrest.” Berkemer v. McCarty,
468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)
(citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20
L.Ed.2d 889 (1968)); see also Livingston v. State, 317 Md.
408, 411, 564 A.2d 414 (1989). “Therefore, stopping a
vehicle for a speeding [or seat belt] violation and detaining
its occupants does not constitute a custodial arrest.”
Livingston v. State, 317 Md. 408, 412, 564 A.2d 414
(1989) (citing Colorado v. Bannister, 449 U.S. 1, 3, 101
S.Ct. 42, 66 L.Ed.2d 1 (1980)). In the instant case, the
speeding and seat belt violations constituted a valid reason
for stopping the vehicle in which appellant was a
passenger, and the stop shall not be “rendered invalid by
the fact that it was ‘a mere pretext for a narcotics search.’”
Whren v. United States, 517 U.S. 806, 813, 116 S.Ct.
1769, 135 L.Ed.2d 89 (1996) (quoting United States v.
Robinson, 414 U.S. 218, 221, n. 1, 94 S.Ct. 467, 38
L.Ed.2d 427 (1973)).
S7a
Our inquiry, similar to that in Doering v. State, 313 Md.
384, 545 A.2d 1281 (1988), is whether Officer Snyder,
after making a legal traffic stop and conducting a legal
search of the vehicle, had probable cause to believe that a
felony had been committed and that appellant had been
involved in the commission of that felony. Doering, 313
Md. at 403, 545 A.2d 1281. Clearly, upon finding the
cocaine, Officer Snyder had probable cause to believe a
felony had been committed, specifically, possession of a
controlled dangerous substance. The present question is
whether Officer Snyder had probable cause to believe
appellant, at the time of the arrest, was in possession of the
controlled dangerous substance.
“The rule of probable cause is a non-technical
conception of a reasonable ground for belief of guilt,
requiring less evidence for such belief than would justify
conviction but more evidence than that which would
arouse a mere suspicion.” /d.; see also Collins v. State,
322 Md. 675, 680, 589 A.2d 479 (1991); Sterling v. State,
248 Md. 240, 245, 235 A.2d 711 (1967); Edwardsen v.
State, 243 Md. 131, 136, 220 A.2d 547 (1966). The
United States Supreme Court explained this nontechnical
conception in Brinegar v. United States, 338 U.S. 160,
176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949):
Because many situations which confront officers in
the course of executing their duties are more or less
ambiguous, room must be allowed for some mistakes
on their part. But the mistakes must be those of
reasonable men, acting on facts leading sensibly to
their conclusions of probability. The rule of probable
cause is a practical, nontechnical conception
affording the best compromise that has been found
for accommodating ... often opposing interests.
58a
Requiring more would unduly hamper law
enforcement. To allow less would be to leave
law-abiding citizens at the mercy of the officers’
whim or caprice.
See Doering, 313 Md. at 403, 545 A.2d 1281.
In the instant case, during the hearing on appellant’s
motion to suppress, defense counsel argued that there was
no basis upon which to infer appellant had knowledge of
the drugs. The following exchange occurred.
The Court: Well, I think one reason they may know
they are there is because he placed them there.
Within an arm’s reach. That’s a reasonable
assumption.
[Defense Counsel]: Again, your Honor, ...
The Court: I am thinking only on the fact that they
were in arm’s reach in the way he was seated.
Especially when they were not secreted. They were
just basically placed back there and hidden by the
armrest. That was the information that [the officer]
had before he made the arrest.
[Defense Counsel]: I would argue, Your Honor, that
the drugs are secreted under those circumstances.
[The officer] can’t see them. The armrest is certainly
placed up there for some purpose.
The Court: To hide them.
[Defense counsel]: To hide them.
The Court: From the police.
[Defense counsel]: Exactly.
The Court: Well, he didn’t do a very good job. He
didn’t have much time.
The trial court concluded:
Upon the search drugs were found within an arm’s
reach of [Pringle], not in a secretive place or in a
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locked place. As well as put the armrest back up
[sic]. The other factor that was not argued is the fact
that there was money in front which you have money
in front, drugs in the back, both in arm’s reach of this
particular Defendant, I think the officer had probable
cause to make the arrest as he did.
The trial court did not cite authority for its “arm’s
reach” standard, but we presume it was derived from the
application of the Folk test to contraband found within
automobiles. The Folk test, announced by this Court in
Folk v. State, 11 Md.App. 508, 275 A.2d 184 (1971),
consists of four factors. The factors are:
1) proximity between the defendant and the
contraband, 2) the fact that the contraband was within
the view or otherwise within the knowledge of the
defendant, 3) ownership or some possessory right in
the premises or the automobile in which the
contraband is found, or 4) the presence of
circumstances from which a reasonable inference
could be drawn that the defendant was participating
with others in the mutual use and enjoyment of the
contraband.
Folk, 11 Md.App. at 518,275 A.2d 184. See also Moye v.
State, 139 Md.App. 538, 549-50, 776 A.2d 120 (2001);
West v. State, 137 Md.App. 314, 357-58, 768 A.2d 150
(2001); Herbert v. State, 136 Md.App. 458, 465-66, 766
A.2d 190 (2001); Veney v. State, 130 Md.App. 135,
143-44, 744 A.2d 1094 (2000); In Re Nahif A., 123
Md.App. 193, 209, 717 A.2d 393 (1998); Hall v. State,
119 Md.App. 377, 394, 705 A.2d 50 (1998); Colin v.
State, 101 Md.App. 395, 406, 646 A.2d 1095 (1994). .
The Folk test is a useful tool for determining whether
someone exercises actual or constructive dominion or
60a
control over contraband, but it is not a bright line rule that
permits law enforcement officials and trial courts to find
joint possession if the facts of a case satisfy any one of the
four factors. Folk, like the instant case, was an
automobile case, and, when this Court discussed the
“proximity” factor in Folk, we stated:
In the case at bar, the proximity between the
appellant and the marihuana could not be closer, short
of direct proof that the appellant herself was in
exclusive physical possession of the marihuana. She
was one of six occupants in a Valiant automobile
and was, therefore, whatever her position in the car,
literally within arm’s length of every other occupant
of that automobile. The marihuana cigarette being
smoked was, at any point in time, within direct
physical possession of one of those occupants.
Proximity could not be more clearly established.
Folk, 11 Md.App. at 518, 275 A.2d 184 (emphasis added).
The Folk test was again applied in Colin v. State, 101
Md.App. 395, 646 A.2d 1095 (1994), in which this Court
said:
As a passenger, it may be true that Colin did not
exercise “control” over the vehicle. Colin was
traveling in the same vehicle as the cocaine, however,
and that is sufficient to establish “close proximity.”
Although the cocaine was not in plain view, being
secreted away in the door, this factor is also not
determinative.... Moreover, as Colin was a voluntary
passenger, it may be reasonably inferred that he
anticipated “the mutual enjoyment of the
contraband.” Further, from his riding in the vehicle
with appellant Heath, it could be reasonably inferred
that they wanted to use the drug jointly.
6la
Colin, 101 Md.App. at 407, 646 A.2d 1095 (citations
omitted). :
In Colin, we examined all four Folk factors and found
the “proximity” and “mutual enjoyment” factors were
satisfied. Jd. Colin was followed a year later in Pugh v.
State, 103 Md.App. 624, 652-53, 654 A.2d 888 (1995), a
case in which cocaine was found inside the spare tire
under the carpeting of the trunk. Folk, Colin, and Pugh
were all cases in which this Court was tasked to review the
sufficiency of the evidence to sustain a possession
conviction.
Appellant relies on Livingston v. State, 317 Md. 408,
564 A.2d 414 (1989), in which the Court dealt with the
issue of probable cause. In Livingston, the Court held that
“the presence of two seeds on the floor in the front of the
car, without more, [was] insufficient to inculpate [Wesley
Warren] Livingston, a rear seat passenger, for possession
of marijuana.” Livingston, 317 Md. at 413, 564 A.2d 414.
Livingston is distinguishable from the case before us. In
Livingston, there were two marijuana seeds on the front
floorboard and the defendant was in the back seat. In the
case before us, there were five baggies behind an armrest
in the back seat and a substantial amount of cash in the
glove compartment located in front of appellant. We see
a significant difference between two marijuana seeds and
five baggies plus cash. The circumstances were sufficient
to constitute probable cause to make an arrest.
Inducements
The introduction o/ a criminal defendant’s confession is
permitted at trial if the confession was, “(1) voluntary
under Maryland nonconstitutional law, (2) voluntary under
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the Due Process Clause of the Fourteenth Amendment of
the United States Constitution and Article 22 of the
Maryland Declaration of Rights, and (3) elicited in
conformance with the mandates of Miranda.” Hoey v.
State, 311 Md. 473, 480, 536 A.2d 622 (1988). To
overcome a pretrial motion to suppress, the State must
establish by a preponderance of the evidence that the
confession was freely and voluntarily given, and not a
product of improper threats, inducements, or promises.
Winder v. State, 362 Md. 275, 307, 765 A.2d 97 (2001).
“Maryland law demands that confessions ‘be shown to be
free of any coercive barnacles that may have attached by
improper means to prevent the expression from being
voluntary.”” Reynolds v. State, 327 Md. 494, 504, 610
A.2d 782 (1992) (quoting Hillard v. State, 286 Md. 145,
150, 406 A.2d 415 (1979)).
In the case sub judice, appellant relies on
nonconstitutional grounds for challenging the
voluntariness of his confession. Appellant contends he
confessed because of promises by Officer Snyder to
release the other occupants of the vehicle. Appellant
argues Officer Snyder’s statement to the suspects at the
arrest scene, that unless he knew who possessed the drugs,
“you are all going to get arrested,” induced appellant’s
subsequent confession. Appellant testified at the
suppression hearing that Officer Snyder reissued a similar
inducement during the police station interrogation. Officer
Snyder testified the alleged incident at the police station
never occurred, however. The circuit court denied
appellant’s motion to suppress, finding that the confession
was voluntary.
In general, we review the totality of the ciccumstances
surrounding the confession to determine voluntariness.
63a
Reynolds, 327 Md. at 495, 610 A.2d 782. Relying on
Hillard v. State, 286 Md. 145, 406 A.2d 415 (1979), the
Court established a two-part test whereby a confession is
deemed involuntary and inadmissible, if “(1) a police
officer or an agent of the police force promises or implies
to a suspect that he or she will be given special
consideration from a prosecuting authority or some other
form of assistance in exchange for the suspect’s
confession, and (2) the suspect makes a confession in
apparent reliance on the police officer’s statement.”
Winder, 362 Md. at 309, 765 A.2d 97. In the instant case,
neither prong is satisfied.
Under the first prong, we apply an objective test to
determine whether Officer Snyder’s statement was a
threat, promise, or inducement. “Although a defendant
need not point to an express quid pro quo, ‘[a] mere
exhortation to tell the truth is not enough to make a
statement involuntary.” Winder, 362 Md. at 311, 765
A.2d 97 (quoting Reynolds, 327 Md. at 507, 610 A.2d
782). There is a distinction between a permissible
exhortation, “much better if you told the story,” Ball v.
State, 347 Md. 156, 174, 699 A.2d 1170 (1997); general
recommendation that suspect seek advice, Reynolds, 327
Md. at 509, 610 A.2d 782; “get it off your chest,” Bean v.
State, 234 Md. 432, 442, 199 A.2d 773 (1964); “better if
[you] told the truth,” Ralph v. State, 226 Md. 480, 486,
174 A.2d 163 (1961); “the truth hurts no one,” Merchant
v. State, 217 Md. 61, 68, 141 A.2d 487 (1958); “the truth
would hurt no one,” Deems v. State, 127 Md. 624, 630, 96
A. 878 (1916); “I want you to tell me the truth,” Nicholson
v. State, 38 Md. 140, 153 (1873); “no sense in lying,”
Clark v. State, 48 Md.App. 637, 646, 429 A.2d 287
(1981), and an impermissible promise or offer; “produce
64a
the narcotics, [and your] wife would not be arrested,”
Stokes v. State, 289 Md. 155, 157, 423 A.2d 552 (1980);
“if you are telling me the truth ... I will go to bat for you,”
Hillard, 286 Md. at 147, 406 A.2d 415; “it would be better
for him to tell the truth, and have no more trouble about
it,"Biscoe v. State, 67 Md. 6, 6, 8 A. 571 (1887).
Consistent among the later category, prior to the
confession, the suspect is promised something as a
consequence of his or her response or silence. In contrast,
Officer Snyder’s statement communicated that all three
suspects were going to be arrested for possession. This
statement flowed naturally from the attendant
circumstances of finding three suspects within the
proximity of the illegal drugs. Officer Snyder
subsequently arrested the three suspects, consistent with
the import of his statement. Officer Snyder denied telling
the three suspects that “if one person is going to be the one
who fesses [sic] up tell me now so I can let the other two
go.” Instead, Officer Snyder sought the truth, stated his
intent to arrest the suspects, and carried out the arrests.
Absent an express promise, threat, or inducement, we shall
not consider the defendant’s subjective belief that he or
she would benefit by confessing. Winder, 362 Md. at 311,
765 A.2d 97. Consequently, we reject appellant’s
argument that he believed the other suspects would be
released from custody if he confessed.
Assuming arguendo that Officer Snyder promised to
confer a benefit upon appellant if he confessed, we still
affirm the outcome because the second prong necessarily
fails. Under the second prong, we determine whether
there was a nexus between Officer Snyder’s statement and
appellant’s confession by examining the particular facts
and circumstances surrounding the confession. See id. at
65a
312, 765 A.2d 97. We must “ascertain whether he
[appellant] had been influenced by such inducement in
making the confession.” Ralph v. State, 226 Md. 480, 486,
174 A.2d 163 (1961). We shall consider the amount of
time elapsed between the alleged inducement and the
confession, and any intervening factors, besides the
statement, that might have caused the confession. See
Winder, 362 Md. at 312-13, 765 A.2d 97.
Officer Snyder made the alleged inducement to
appellant sometime shortly after 3:16 a.m., however,
appellant did not make the confession until 5:30 a.m. At
least two hours elapsed generating an issue of attenuation.
While no bright line test exists for delineating a proper
time frame, in Ralph, the court held that an alleged
inducement made eight hours before the confession was
too attenuated, while in Stokes, the court held a confession
made in direct response to an inducement was sufficiently
related. Ralph, 226 Md. at 486, 174 A.2d 163; Stokes, 289
Md. at 157-58, 423 A.2d 552. During the passage of two
hours, appellant’s lack of urgency in responding to Officer
Snyder’s statement diminishes the alleged impact. The
timing factor alone would not dispose of the issue;
consequently, we address the intervening considerations.
Appellant’s argument that he confessed so his friends
would go free is inconsistent with the sequence of events.
All three suspects, including appellant, were arrested at the
scene prior to their transfer to the police station and
appellant’s confession. Our focus is only on the alleged
inducement at the scene because the trial court rejected
appellant’s claim of a subsequent inducement at the police
station. The alleged inducement at the scene consists of a
single statement, “you are all going to get arrested.”
Appellant’s argument fails because he and his friends had
66a
already been arrested when he later made the oral and
written confession. Appellant’s transfer from the crime
scene to the police station also disrupted the nexus
between the alleged inducement and confession. Thus,
following the arrest, no benefit could be conferred and any
influence from Officer Snyder’s statement had seriously
dissipated.
Although we reach our decision on different grounds, it
is unsettled whether a promise to benefit a friend justifies
finding the subsequent confession involuntary. The Court
in Stokes, refused to consider whether kinship or what
degree of closeness is required between the defendant and
third party. Stokes, 289 Md. at 160 n. 2, 423 A.2d 552
(finding that a promise to benefit
defendant’s wife was an inducement). In Finke, however,
the Court found no degree of closeness, stating that “the
record contains nothing to indicate that appellant actually
enjoys a particularly close relationship with the child, and
the nature of their kinship does not imply such a
closeness.” Finke v. State, 56 Md.App. 450, 485, 468
A.2d 353 (1983) (defendant and the third party were first
cousins). Cf. Bellamy v. State, 50 Md.App. 65, 77-78, 435
A.2d 821 (1981) (defendant’s confession induced by
promise to benefit fiancee was found involuntary); Jarrell
v. State, 36 Md.App. 371,373 A.2d 975 (1977)(consenting
to search based on promise to release sick friend was
found involuntary). We need not decide this issue.
JUDGMENTS AFFIRMED. COSTS TO BE PAID
BY APPELLANT.
Dissenting opinion by SONNER, Judge.
67a
I concur with the bottom line holding on Pringle’s first
issue. Although I believe the admission of the testimony
was wrong, the error was not preserved. I must
respectfully, but emphatically, dissent on the second issue.
The majority, in finding that Officer Snyder had probable
cause to arrest Pringle, and in affirming this conviction,
has promulgated dangerous precedent that ignores
developed law and guides law enforcement to act against
the grain of due process and ethical police procedures.
First, as to the dissent: When Officer Snyder discovered
contraband secreted in the back seat armrest of the car in
which Pringle was nding, he was in doubt as to whom the
drugs belonged and whom he could arrest. He did not
conclude that the drugs belonged jointly to all three
passengers, including the driver of the car, the back seat
passenger, and Pringle, who sat in the front passenger seat.
Reacting to his doubt, the officer threatened to arrest all
three men, unless one of them admitted ownership of the
forbidden drugs. When no one did so, Officer Snyder,
with his doubt still unresolved, arrested all three. Now,
the majority sanctions such police work, concluding that
Officer Snyder had probable cause to arrest all three men
to squeeze a confession of ownership from one of them.
I am unable to go along with what I believe is not only a
stretch to affirm a conviction, but an analysis that ignores
a clear line of cases from the Court of Appeals spanning
three decades. |
Professors Charles Whitebread and Ronald Stevens
wrote, in 1972, that constructive possession of narcotics
prosecutions “have engendered such conceptual confusion
and given rise to so many conflicting rulings ‘that for the
practitioner the problems are difficult to understand and
apparently for the courts impossible to master.’” Charles
68a
H. Whitebread & Ronald Stevens, Constructive Possession
in Narcotics Cases: To have and Have Not, 58 Va. L.Rev.
751 (1972) (quoting United States v. Holland, 445 F.2d
701, 704 n. 1 (D.C.Cir.1971) (Tamm, J., concurring)).
This Court has compounded the confusion, at times, by
diverging from the precedent developed by the Court of
Appeals in joint possession cases, which can lead “to
contrary conclusions in cases with similar facts.” See
Dana L. Weinstein, The Maryland Survey: 1996- 1997:
Recent Decisions: The Maryland Court of Appeals, 57
Md. L.Rev. 795, 813 (1998). With the majority opinion,
I believe, this Court again fails to heed and follow
controlling law from the Court of Appeals.
In 1971, in Folk v. State, 11 Md.App. 508, 275 A.2d
184, Judge Moylan reviewed Maryland’s previous joint
possession cases and articulated a four-part test that
reflected the “common thread” running through those
cases. One of the enumerated factors was the proximity
between the accused and the contraband. See id. at 518,
275 A.2d 184.' This Court affirmed Lillie Mae Folk’s
conviction because there was sufficient evidence to
convict all six occupants of the car for possession of
! The other enumerated factors were whether (1) “the
contraband was within the view or otherwise within the
knowledge of the defendant;” (2) the defendant exercised
ownership or some other kind of possessory interest in the
location where the drugs were found; and (3) whether the
circumstances indicated that “the defendant was
participating with others in the mutual use and enjoyment
of the contraband.” Folk, 11 Md.App. at 518, 275 A.2d
184.
69a
marijuana. The discovered drugs were “within arm’s
length” of all of the passengers, satisfying the proximity
factor. Jd. But the evidence did not stop with mere
proximity, as Judge Moylan explained:
Nor would there be, under the circumstances of this
case, any difficulty in drawing a reasonable inference
that the marihuana was within the view, or otherwise
within the knowledge, of the appellant. In a darkened
car in a dark field, the glow from a lighted cigarette
is Clearly visible within that maximum radius of four
to five feet between the glow and the viewer.
Knowledge of the presence of marihuana would be
imparted even more emphatically by the sense of
smell, in a situation where the cloud of smoke and the
peculiar pungent odor filled the interior of a
tightly-closed automobile. Neither would the
inference be unreasonable that some conversation
transpired among the six persons huddled there in the
dark dealing with what the cigarette and the fumes
were all about. It would, indeed, be unreasonable not
to infer knowledge of the marihuana on the part of
the appellant.
Id. This Court has returned to the four-part test articulated
in Folk several times. See, e.g., Pugh v. State, 103
Md.App. 624, 654 A.2d 888 (1995); Colin v. State, 101
Md.App. 395, 646 A.2d 1095 (1994); and the six other
cases cited in the majority opinion on page 797.
Three years after Folk, however, in Garrison v. State,
272 Md. 123, 321 A.2d 767, (1974), the Court of Appeals
overturned a conviction involving joint possession, after
we had affirmed it in an unreported opinion. Judge
O’Donnell, writing for a unanimous Court, conducted his
own extensive review of Maryland joint possession cases.
70a
Without discussing Folk or applying any four-part test,
Judge O’Donnell stated that the proper determination was
whether the accused exercised some “dominion or
control,” either jointly or solely, over the contraband. Jd.
at 142,321 A.2d 767. The Court then concluded that the
evidence was insufficient to show that Shirley Garrison
jointly possessed the heroin seized from the apartment that
she shared with her husband. Since Garrison, the Court of
Appeals has consistently ignored the Folk four-part test, so
often applied by this Court, and,
instead, has preserved Judge O’Donnell’s approach of
asking whether the accused exercised some dominion or
control over the contraband.’
The next significant Court of Appeals ruling on joint
possession was State v. Leach, 296 Md. 591,463 A.2d 872
(1983), in which the accused occupied an apartment with
his brother and had been observed by police going in and
out of the building several times. A search of the
apartment produced evidence of a commercial narcotics
operation, including two scales, cutting tools, and
? Courts in other jurisdictions also have focused on the
accused’s dominion or control of the contraband, and have
rejected proximity as a conclusive factor in joint
possession cases. See, e.g., United States v. Blue, 957 F.2d
106 (4th Cir.1992) (“The mere proximity of [contraband]
[ ] to a passenger in a car goes only to its accessibility, not
to the dominion or control which must be proved to
establish possession.”); Reid v. State, 212 Ga.App. 787,
442 S.E.2d 852 (1994); State v. Drake, 288 Ill.App.3d 963,
225 Ill.Dec. 552, 683 N.E.2d 1215 (1997); State v. Toups,
792 So.2d 18 (La.Ct.App.2001).
7la
individually wrapped packets of PCP. In spite of a strong
dissent by Chief Judge Robert Murphy, the majority found
insufficient evidence that Leach had exercised “actual or
constructive dominion or control” over the illegal drugs,
even though it was clear that he had some proprietary
interest in the apartment and some of the incriminating
evidence turned up in his bedroom. /d. at 595, 463 A.2d
872. Neither Judge Rodowsky, writing for the six-judge
majority, nor Judge Murphy, in dissent, mentioned the
Folk test.
Next, in Dawkins v. State, 313 Md. 638, 547 A.2d 1041
(1988), the Court of Appeals meaningfully expanded the
Garrison analysis when it held that criminal possession
included the element of knowledge. It clarified that, along
with showing dominion or control, “[{t]he accused, in order
to be found guilty, must know of both the presence and the
general character or illicit nature” of the item possessed.
Id. at 651, 547 A.2d 1041. The Court reversed Leonard
Dawkins’s conviction, even though police observed him
enter an apartment carrying a tote bag, in which, twenty
minutes later, they found narcotics paraphernalia and
heroin residue. Judge Eldridge, writing for a unanimous
Court, never mentioned ‘he Folk four-part test, which
presumably Dawkins satisfied by carrying the tote bag.
In three important cases since Dawkins, the Court of
Appeals has ignored the Folk test. In Livingston v. State,
317 Md. 408, 564 A.2d 414 (1989), a state trooper, who
stopped a vehicle for speeding, was found to have lacked
probable cause to arrest a back seat passenger for
possession of two marijuana seeds discovered on the front
“floor of the car. The Court wrote, in reversing the
conviction and finding a lack of probable cause: “Merely
sitting in the backseat of the vehicle, Livingston did not
72a
demonstrate to the officer that he possessed any
knowledge of, and hence, any restraining or directing
influence over two marijuana seeds located on the floor in
the front of the car.” Jd. at 415-16, 564 A.2d 414. Judge
Blackwell, writing for a unanimous Court, cited Garrison,
Leach, and Dawkins for their discussion of what it means
to knowingly exercise dominion and control.”
In Taylor v. State, 346 Md. 452, 697 A.2d 462 (1997),
the Court of Appeals reversed this Court’s unreported
opinion sustaining a possession conviction, in which we
found that “appellant’s presence in a room where
marijuana had recently been smoked I[ed] to the inference
that appellant had himself smoked marijuana.” Jd. at 457,
697 A.2d 462. Judge Raker, writing for a unanimous
Court, cited Garrison and Leach to explain possession.
The Court clarified:
Possession requires more than being in the presence
of other persons having possession; it requires the
exercise of dominion or control over the thing
allegedly possessed. Without more, [Richard
Taylor’s] presence in the room where marijuana had
recently been smoked does not support a rational
inference that [he] had possessed marijuana.
Furthermore, the existence of smoke in a room
> The Court applied Garrison and Leach, which
questioned the sufficiency of the evidence, to Livingston,
which questioned the existence of probable cause to arrest,
thereby conflating the appropriate analysis in both types of
cases. Of course, “probable cause requires less evidence
than that which is essential to sustain a conviction.”
Collins v. State, 322 Md. 675, 681, 589 A.2d 479 (1991).
73a
occupied by five people does not alone justify the
inference that [Taylor] was engaged in the mutual use
or enjoyment of the contraband.
Id. at 459, 697 A.2d 462 (citations omitted). While the
Court acknowledged that Taylor’s proximity to the
concealed contraband created a suspicion of guilt, it stated
emphatically that “[mJere proximity ... is insufficient to
support a finding of possession.” Jd. at 460, 697 A.2d 462
(quoting Murray v. United States, 403 F.2d 694, 696 (9th
Cir.1968)). Once again, the Court did not mention the
Folk test in reversing the conviction.
In the most recent case of White v. State, 363 Md. 150,
767 A.2d 855 (2001), the Court of Appeals, per Judge
Harrell, reversed this Court for having sustained a
conviction after applying the Folk test. Defendant White
had challenged the sufficiency of the evidence on his
convictions for possession of cocaine and related charges.
Recognizing that the Office of the Attorney General had
fashioned its argument to demonstrate compliance with the
Folk test, the Court of Appeals, nevertheless, did not apply
Folk. It stayed the course set by its precedents and
focused on whether White knew about the drugs found in
the trunk of his car and whether he exercised control over
them. After reviewing the record in a light most favorable
to the State, the Court found the evidence insufficient as a
matter of law. Although the Court did not reject the Folk
test outright, referencing Taylor, it again denounced
majority has stopped far short of considering whether
Pringle, in any way, knowingly exercised dominion or
control over the secreted contraband, and has resorted
instead to “speculation or conjecture.” Taylor, 346 Md. at
74a
459, 697 A.2d 462. Although Pringle, like Folk, may have
been within an arm’s reach of the drugs, in fact, to expose
the drugs, he would have had to stretch his body,
maneuver around the back of his seat, and pull down the
arm rest. And unlike Folk, Pringle was not sitting in a
closed car that emanated the pungent, easily detectable
smell of marijuana, which were critical facts in Judge
Moylan’s analysis sustaining Folk’s conviction thirty years
ago. Although the majority attaches some significance to
the large roll of currency found in the glove compartment,
located in front of Pringle’s seat, cash, in and of itself, is
innocuous and certainly less suspicious than the scales and
cutting tools discounted by the Court of Appeals in Leach.
Further, there was no showing whatsoever that Pringle, as
a passenger in the car, had any connection to, or
knowledge of, the money found within the glove
compartment of someone else’s car. See White, 363 Md.
at 167, 767 A.2d 855.
While the majority recognizes that Folk does not
provide “a bright line rule that permits law enforcement
officials and trial courts to find joint possession if the facts
of a case satisfy any one of the four factors,” it proceeds to »
sustain the conviction based only on the “proximity” factor
enumerated in Folk and to conclude that, because the
secreted cocaine was within arm’s reach, as the marijuana
was in Folk, that Pringle was in joint possession. To be
sure, the Folk test may be useful in organizing the
evidence presented in a joint possession case, and it may
assist in reaching the conclusion that a particular person
did in fact exercise some dominion or control over a
prohibited drug. The majority, however, wrongly treats
the individual Folk factors as litmus tests, in place of the
more balanced and more delicate jurisprudence developed
75a
by the Court of Appeals in the last three decades.
Next, I would find that the confession, which resulted
from an illegal arrest, should be barred as the fruit of a
poisonous tree. Wong Sun v. United States, 371 U.S. 471,
83 S.Ct. 407, 9 L.Ed.2d 441 (1963). For the majority, of
course, there is no tree to purify, and no fruit to be
plucked.
Even were the arrest legal and in compliance with the
Fourth Amendment, I would bar the admission of the
confession because it was improperly induced. The
majority, in its discussion of the fundamental law
governing the admission of confessions, has it right:
confessions are permitted at trial if they conform with the
Maryland Declaration of Rights, Maryland
non-constitutional law, and the voluntariness requirement
of the Due Process Clause of the U.S. Constitution.
Further, the confession must conform with Miranda v.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966), and those cases interpreting it. I depart from the
majority’s opinion, however, that the confession here was
voluntary. The admitted threat by the police to arrest all
the occupants of the car unless someone confessed was “a
coercive barnacle [ ] that ... prevent[ed] the [subsequent]
expression from being voluntary.” Hillard v. State, 286
Md. 145, 150, 406 A.2d 415 (1979). The spoken threat,
although perhaps not as serious as a threat to arrest a near
relative as in Stokes v. State, 289 Md. 155, 161, 423 A.2d
552 (1980), was from a due process point of view, equally
impermissible.
At common law, courts excluded only confessions that
were unreliable. See Welsh S. White, False Confessions
and the Constitution: Safeguards Against Untrustworthy
Confessions, 32 Harv. C.R.-C.L.L.Rev. 105, 111-12
76a
(1997). Constitutional due process, as we understand it
today, rejects confessions that are untrustworthy and
confessions that may be trustworthy, but, nonetheless, are
involuntary. See id. at 112-13. The tactic of threatening
third persons to obtain a confession is likely to produce
unreliable and involuntary statements, which are more the
product of fear and anxiety than truthful disclosure. Our
holding sanctions law enforcement officials to choose
from a group, however large, some volunteer to take the
fall for friends or relatives. Confessions so induced
would jack the reliability that due process and our
developed law commendably demands. Indeed, the
majority holdins thwarts the wisdom and sensitivity
carefully nurtured in our law of criminal procedure.
On the remaining issue, I concur that the so-called
expert testimony did not warrant reversal, not because its
admission was proper, but because Pringle did not
preserve the error of its admission. The prosecutor asked
Detective Massoni for an opinion about whether the drugs,
which had been separately packaged, were intended to be
distributed. The detective, as a qualified expert, could
express an opinion as to whether they were or not, and the
court properly overruled the defense’s objection to that
question. But Detective Massoni went further in his
answer and said that the drugs were to be distributed
“either to regain money or to be used for sex,” a
conclusion based not upon his expertise, but wholly
grounded in the confession that Officer Snyder had
extracted from Pringle. The detective asserted, in effect,
that he believed Pringle’s confession was accurate, an
opinion that is barred by Bohnert v. State, 312 Md. 266,
278, 539 A.2d 657 (1988) (holding that “[t]estimony from
a witness relating to the credibility of another witness is to
77a
be rejected as a matter of law.”).
The answer was flawed for an additional reason. The
detective, by commenting about Pringle’s intent, violated —
Maryland Rule 5-704(b), which prohibits an expert from
giving an opinion about a defendant’s mental state, when
that is an element of the crime charged. The Court of
Appeals, in Hartless v. State, 327 Md. 558, 611 A.2d 581
(1992), likewise condemned such expert testimony. The
majority holds that, because the detective testified about
how the drugs were intended to be used, he did not testify
explicitly about Pringle’s state of mind. Such a distinction
is unconvincing, however, because the detective
specifically referenced the particular intent expressed in
Pringle’s confession, not the initent he, as an expert, drew
from the packaging of the drugs. So, the answer was
doubly inadmissible. Detective Massoni essentially
declared: “Pringle told Officer Snyder that his 7
intent was to exchange the drugs for money or sex, and I
believe him!” The detective’s expertise did not permit
him to garner such a conclusicn. He also may have
intended to disparage Pringle in the minds of the jurors,
which the evocative statement likely accomplished.
Nevertheless, Pringle did not move to strike the
detective’s objectionable answer. Maryland Rule 4-323
clearly requires contemporary objections to perceived
errors so that trial courts can attempt to correct them as
they arise. See Hall v. State, 119 Md.App. 377, 389, 705
A.2d 50 (1998). Consequently, I would affirm on this
issue, but not in a way, as the majority he:, that condones
what the prosecutor and expert police witness did in this
case.
78a
APPENDIX C
THE CIRCUIT COURT FOR
BALTIMORE COUNTY, MARYLAND
STATE OF MARYLAND
vs.
JOSEPH PRINGLE
Case Number: 99-CR-3578
*x * * * * * . * .
* . *
REPORTER’S OFFICIAL
TRANSCRIPT OF PROCEEDINGS
Motions Hearing
Towson, Maryland
March 23, 2000
BEFORE: THE HONORABLE ALEXANDER WRIGHT, -
JR., Associate Judge
APPEARANCES: |
On Behalf of the State:
DANIEL BERNARD TRIMBLE, ASSISTANT
STATE’S ATTORNEY
On Behalf of the Defendant:
DONALD ZAREMBA, ASSISTANT PUBLIC
DEFENDER
Reported By:
Kathleen A. Papesh
ee ee
79a
THE COURT: Thank you. Very well. the Court has
listened to the testimony in this particular case. The Court
does feel that the officer acted properly. That the officer
did not violate any of the Defendant’s constitutional nights.
There was a consent search of the vehicle. Upon the
search drugs were found within an arm’s reach of the
Defendant, not in a secretive place or in a locked place.
As well as put the armrest back up. The other factor that
was not argued is the fact that there was money in front
which you have money in front, drugs in the back, both in
arm’s reach of this particular Defendant, I think the officer
had probable cause to make the arrest as he did. He took
them to the Garrison Precinct. I don’t believe that there
were any unconstitutional threats made to him. He gave
him his Miranda rights. He asked him if he wanted to
make a statement, which he did. The Court does not find
any unconstitutional infirmitie
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