Respondents Brief — Maryland v. Pringle

. Supreme ¢ ‘ourt, US i

. Wy

| FILED

In The

Supreme Court of the Anited States

o

STATE OF MARYLAND,

Petitioner,

v.

JOSEPH JERMAINE PRINGLE,

Respondent.

SJ

On Writ Of Certiorari To The

Court Of Appeals Of Maryland

¢

BRIEF OF RESPONDENT

o

STEPHEN E. HARRIS

Public Defender

NANCY S. FORSTER

Deputy Public Defender

SHERRIE GLASSER*

Assistant Public Defender

OFFICE OF THE PUBLIC DEFENDER

6 St. Paul Street, Suite 1400

Baltimore, Maryland 21202-1608

(410) 767-8474

Counsel for Respondent

* Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

BEST AVAN ARIE COPY ©

QUESTION PRESENTED

Where drugs are found hidden in the backseat arm-

rest of an automobile next to the rear seat passenger, does

probable cause exist to arrest the front seat passenger?

ii

TABLE OF CONTENTS .

Page

QUESTION PRESENTED.................cccccceeeeeeeeees we ‘*§

STATEMENT OF THE CASE .................cccccsssesseeseeees 1

SUMMARY OF ARGUMENT. ..................:ccceceeeeeeeeeees 4

DO ME Ser 5

I. WITHOUT MORE, PROBABLE CAUSE DOES

NOT EXIST TO ARREST THE FRONT SEAT

PASSENGER IN A CAR WHERE COCAINE IS

FOUND HIDDEN IN THE BACKSEAT ARM-

REST NEXT TO THE BACKSEAT PASSEN-

Ne 5

II. UNDER THE TOTALITY OF THE CIRCUM-

STANCES, THERE WAS NO PROBABLE

CAUSE TO ARREST RESPONDENT ............... 35

CORN ULAFIII IN 00cccccccccccccccccunswensennnitilneinnissiinnninnnnnannn 39

iii

TABLE OF AUTHORITIES

Page

CASES

Atwater v. City of Lago Vista, 532 U.S. 318 (2001) ...5, 6, 26

Beckwith v. Philby, 108 Eng. Rep. 585 (1827)................... 10

Board of Education v. Earls, 536 U.S. 822 (2002)............. 29

Brinegar v. United States, 338 U.S. 160 (1949)......... passim

Carroll v. United States, 267 U.S. 132 (1925)............. 11,12

Chandler v. Miller, 520 U.S. 305 (1997)...........cccccccceceeeeees 29

Collins v. State, 367 Md. 700, 790 A.2d 660 (2002)........... 36

County Court of Ulster County v. Allen, 442 U.S.

EES 23, 24, 25

Davis v. Mississippi, 394 U.S. 721 (1969).................... 30, 31

Facon v. State of Maryland, 2003 WL 21361541

rr crc rereremensnnsonononennes 32

Illinois v. Gates, 462 U.S. 213 (1983) ...............cccccceeee 11, 12

Johnson v. United States, 333 U.S. 9 (1948)......... 18, 19, 20

Mallory v. United States, 354 U.S. 449 (1957)............ 31, 32

Maryland v. Wilson, 519 U.S. 408 (1997) ...............ccc00eee00s 38

Michigan Dept. of State Police v. Sitz, 496 U.S. 444

ES SSAA 30

New York v. Belton, 453 U.S. 454 (1981) ...............0..:ccceeees 23

Payton v. New York, 445 U.S. 573 (1980) ..............:ccceeee 6, 8

Rakas v. Illinois, 439 U.S. 128 (1978) ............cccccceeeees 37, 38

Rohan v. Sawin, 59 Mass. (5 Cush.) 281 (1850)................ 10

Russell v. Shuster, 8 Watts & Serg. 308 (Pa. 1844)........... 10

Sibron v. New York, 392 U.S. 40 (1968)....................06 27, 36

iv

TABLE OF AUTHORITIES — Continued

Page

Terry v. Ohio, 392 U.S. 1 (1968).............cccccccccscsseseseeees 27, 32

. Tot v. United States, 319 U.S. 463 (1943) ...............ccceeeeeeeee 25

Treasury Employees v. Von Raab, 489 U.S. 656

Gia sssnsstennnsannceenenncenenansbueanintnnsmeiaiiostiaiummmeniamineniinel 30

United States v. Cortez, 449 U.S. 411 (1981)............... 11, 12

United States v. Di Re, 332 U.S. 581 (1948).............. passim

United States v. Hensley, 469 U.S. 221 (1985) .................. 23

United States v. Romano, 382 U.S. 136 (1965)............ 25, 26

United States v. Watson, 423 U.S. 411 (1976) ................00. 9

Vernonia School Dist. 47J v. Acton, 515 U.S. 646

Free svinhensnnctecnennnsinbiiceneeanisusaaininatitiiinaiassonaiatasidiniitetiniadl 29

Wilkes v. Wood, 19 How. St. Tr. 1153, 98 Eng. Rep.

SC See atarseriiiriccaniinsinaniunieannenensinaaaiaiiintinpiiiiniiiiiagees 8

Williams v. State of Maryland, 2003 WL 26361726

Eisai cuvenininsnccinneseteiimnniainonsnpempemiatatinusninnmmmieeiessiniinl 32

Wilson v. Arkansas, 514 U.S. 927 (1995) ...........ccccccceeeeeeeees 6

Wong Sun v. United States, 371 U.S. 471 (1963)......... 19, 20

Wyoming v. Houghton, 526 U.S. 295 (1999) ....26, 27, 28, 38

Ybarra v. Illinois, 444 U.S. 85 (1980).............. 21, 22, 27, 36

CONSTITUTIONAL PROVISIONS

Fourth Amendment, United States Constitution...... passim

STATUTES

Md. Code Annotated, Criminal Procedure Article

ee ncnarcsnnevtsenncssmnsnnsnennsannenimnnntecmmmasniemmetaeson 14

v

TABLE OF AUTHORITIES - Continued

Page

Md. Code Annotated, Criminal Law Article §5-602

TIT iccinsenibcastesenteannnetinilasnndaniaediiemnapemtdansiiiamiiabieliiningenians 1

Md. Code Annotated, Art. 27 §286(a)(1) (1957, 1996

I Weis Se ND cnccerinnensunesesnmnnengseenenmmmeeniniasesees 1

MISCELLANEOUS

E. Washburne, Massachusetts Bill of Rights,

Massachusetts Historical Society Proceedings,

ee I, Bi crnstctntnsctsnenntansnnsinnemenen 7

M. Hale, The History of the Pleas of the Crown

Tr cicasihashinciatainttaashsianrsaneitansiginaaeiiattiahiadlediaiainasibinaanneiinaeiained 9

N. Lasson, The History and Development of the

Fourth Amendment to the United States Consti-

Se ATTEN TALI 7

Thomas K. Clancy, The Role of Individualized Suspi-

cion In Assessing The Reasonableness of Searches

and Seizures, 25 U. Mem. L. Rev. 483 (1995)................. 7

Thomas Y. Davies, Recovering the Original Fourth

Amendment, 98 Mich. L. Rev. 547 (1999).......... 6, 7, 9, 10

1

STATEMENT OF THE CASE

The State of Maryland charged Respondent with the

offense of possession with intent to distribute cocaine

pursuant to Md. Code Annotated, Art. 27 §286(a)(1) (1957,

1996 Repl. Vol., 2002 Supp.).’ Prior to the trial on the

merits, a hearing was conducted in the Circuit Court for

Baltimore County to consider Respondent’s motion to

suppress evidence, including a statement, taken in viola-

tion of his constitutional rights.

Officer Jeffrey Snyder was the State’s sole witness. He

testified at the motion to suppress hearing. He stated that

on August 7, 1999, while on routine patrol at approxi-

mately 3:16 a.m., he observed a 1987 Nissan Maxima

traveling at a high rate of speed. (JA 5). He further noticed

that the driver of the Maxima was not wearing a seat belt

as required by Maryland law. (JA 5). Officer Snyder

effectuated a stop of the car for the traffic violations. The

Maxima was stopped on a lit residential street. (JA 7).

There were three occupants in the car: the driver and

registered owner, Donte Parlo; the front seat pass2nger,

Respondent; and a rear seat passenger, Otis Smith. (JA 5-

6, 41). Officer Snyder testified that he asked Mr. Parlo for

his driver’s license and registration. According to Officer

Snyder, “I was talking to the driver and asking for his

registration, that’s when I saw the money in the glove

box.” (JA 12). After obtaining Mr. Parlo’s license and

registration, Officer Snyder ran the information through

the Maryland State Department of Motor Vehicles

* Effective October 1, 2002, this statute was repealed and re-

enacted, without substantive change, in Md. Code Annotated, Criminal

Law Article, §5-602 (2002).

2

computer system. (JA 8). During this time, all occupants of

the car remained “in their respective spots in the vehicle.”

(JA 9).

After obtaining the necessary information from the

Department of Motor Vehicles, Officer Snyder proceeded

back to the Maxima and asked Mr. Parlo to exit the car.

(JA 9). Officer Snyder frisked Mr. Parlo after he exited the

car and asked “him if he had any weapons on him.” (JA

34). Mr. Parlo said that he did not and the pat-down

revealed no evidence. (JA 34). Officer Snyder issued a

“verbal warning” to Mr. Parlo while Mr. Parlo stood

outside of the car. (JA 6). He then returned the license and

registration to Mr. Parlo. Before Mr. Parlo could get back

into his car, Officer Snyder inquired “if he had anything * *

the vehicle, any drugs, weapons, narcotics in the vehic)».”

(JA 10). Mr. Parlo responded that he did not. (JA 10).

Officer Snyder then asked of Mr. Parlo “if he would mind

that I search his vehicle.” (JA 10). According to the officer,

Mr. Parlo said “yes, go ahead.” (JA 10).

Officer Snyder asked Respondent and Mr. Smith to

get out of the car and take a seat on the nearby curb. (JA

35). Respondent and Mr. Smith did as they were told.

Before they sat on the curb, however, Officer Snyder asked

if either had any weapons on him and, when each re-

sponded negatively, Officer Snyder frisked each of them.

(JA 37). The frisk of the two passengers bore no incrimi-

nating fruit. (JA 37). However, Officer Snyder removed

Respondent’s driver’s license from his pants pocket. (JA

37). By this time, a back-up unit had arrived and the

officer with that unit stood near Respondent, Mr. Smith,

and Mr. Parlo while Officer Snyder conducted his search of

the car. (JA 11). Officer Snyder first searched the driver’s

side of the car and made no discoveries. (JA 11). He then

3

proceeded to search the front passenger’s seat area and

“that’s when [he] found the money in the glove box,” which

he had seen earlier when Mr. Parlo retrieved his docu-

ments. (JA 12).’ Officer Snyder removed “the money” from

the glove compartment and put it on the front seat. (JA

12). He then moved to the rear of the car.

Officer Snyder described the back seat as “flat” with

the armrest in “the up position.” (JA 40). He pulled down

the armrest and found drugs “sandwiched” between the

armrest and the back seat of the car. (JA 40-41). Specifi-

cally, he found “a clear plastic Ziploc baggie containing five

smaller glassine baggies containing a white rock-like

substance.” (JA 13).* The drugs were in the rear seat area

next to.where Mr. Smith had been sitting. (JA 41). After

discovering the drugs, Officer Snyder questioned each of

the occupants, one at a time, beginning with the

driver/owner, Mr. Parlo, in an attempt to discover who

owned the drugs. (JA 42). Mr. Parlo provided Officer

Snyder with no information. (JA 42). Officer Snyder then

took Respondent to the other side of the street and ques-

tioned him, to no avail. (JA 43). Mr. Smith was then taken

to the other side of the street and questioned, similarly,

with no results. (JA 43). Officer Snyder testified that he

told all three men that if he did not get an answer as to

the ownership of the drugs, he would arrest all three and

take them to the precinct. (JA 43). Respondent’s testimony

* There was no testimony or documentary evidence presented at

the motion to suppress hearing describing the amount or appearance of

the money in the glove compartment.

* Chemical analysis of the rock-like substance revealed it to be

cocaine.

4

in this regard did not differ from Officer Snyder’s account

of events. Respondent testified that, at the scene of the

arrest, Officer Snyder said “if he didn’t find out whose

drugs they was, he was going to lock all three of [us] up.”

(JA 52). When none of the occupants of the car claimed

ownership, Officer Snyder arrested all three.

According to Respondent, once at police headquarters,

Officer Snyder told all three of the men, “I am going to

give you one last chance to tell me whose drugs these are

or I am going to charge all three you all with what I

found.” (JA 53). All three men were interviewed. (JA 46).

Respondent confessed to ownership of the drugs and was

the only one of the occupants charged with possessing

them.

After hearing argument from counsel, the suppression

court found that the search of the car was conducted

pursuant to a validly obtained consent, ruling that “there

was money in front ... drugs in the back, both in arm’s

reach of [Respondent],” and, thus “the officer had probable

cause to make the arrest as he did.” (JA 69).

+

SUMMARY OF ARGUMENT

Both history and this Court’s precedents mandate that

a police officer may undertake the major intrusion of an

arrest only upon individualized suspicion that a citizen is

or has engaged in criminal behavior. Those precedents

include instances in which multiple individuals are ob-

served occupying a vehicle, suspicion has fallen upon one

of those individuals, yet the police take action against

other occupants of the car which comes within the ambit of

the Fourth Amendment. Soundly rejecting the notion of

5

guilt by association, this Court has condemned such action

by the police. In the present case, no grounds for individu-

alized suspicion applied to Respondent. His arrest, there-

fore, contravened the Fourth Amendment.

The position of Petitioner not only treads upon indi-

vidual liberties secured by the Bill of Rights, but also

utterly fails to provide meaningful guidance to the police

officer on the street. That position would condition the

right to arrest upon the size and configuration of the

involved vehicle, and thereby require the officer to make

judgments and distinctions grounded on neither commen

sense nor principle.

This Court should reaffirm and apply the requirement

of individualized suspicion, and hold that the total absence

of facts pointing to Respondent’s involvement in criminal

activity rendered his arrest invalid.

¢

ARGUMENT

I. WITHOUT MORE, PROBABLE CAUSE DOES

NOT EXIST TO ARREST THE FRONT SEAT

PASSENGER IN A CAR WHERE COCAINE IS

FOUND HIDDEN IN THE BACKSEAT ARM-

REST NEXT TO THE BACKSEAT PASSEN-

GER.

Individualized suspicion is a fundamental component

of probable cause to arrest. Only two years ago, this Court

had occasion to address the authority of police to make

warrantless arrests. Atwater v. City of Lago Vista, 532

U.S. 318 (2001). In determining the scope of that authority

with respect to misdemeanor offenses, this Court was

guided by

6

‘the traditional protections against unreasonable

searches and seizures afforded by the common

law at the time of the framing [of the Fourth

Amendment],’ Wilson v. Arkansas, 514 U.S. 927,

931, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995),

since ‘[aJn examination of the common-law un-

derstanding of an officer’s authority to arrest

sheds light on the obviously relevant, if not en-

tirely dispositive, consideration of what the

Framers of the Amendment might have thought

to be reasonable.’ Payton v. New York, 445 U.S.

573, 591, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)

(footnote omitted).

532 U.S. at 326. Those same considerations, as well as the

Court’s own precedents, must guide the Court here.

A. The historical foundations of the Fourth

Amendment dictate the need for indi-

vidualized suspicion before an arrest can

be made.

An examination of the common law understanding of

an officer’s authority to arrest demonstrates that indi-

vidualized suspicion was a core component. Numerous

commentators on the subject have concluded that the

framers of the Fourth Amendment feared that the newly

created Congress would pass legislation permitting gen-

eral warrants to serve as a basis for arrest or search. See

Thomas Y. Davies, Recovering the Original Fourth

Amendment, 98 Mich. L. Rev. 547, 590 (1999) (“(TJhe

Framers adopted constitutional search and seizure provi-

sions with the precise aim of ensuring the protection of

7

person and house by prohibiting legislative approval of

general warrants.”)*; Thomas K. Clancy, The Role of

Individualized Suspicion In Assessing The Reasonableness

of Searches and Seizures, 25 U. Mem. L. Rev. 483, 489

(1995) (“[T]he historical record overwhelmingly supports

the view that the Amendment was designed solely or

primarily to address searches and seizures pursuant to a

warrant because the colonials were concerned only about

those actions.”). This fear was well-founded given the

experiences of the colonists in England just prior to leav-

ing for the new world. These colonists were subjected to,

inter alia, mandates of arrest “per speciale mandatum

domini regis” — upon the fiat of the king. N. Lasson, The

History and Development of the Fourth Amendment to the

United States Constitution, 30-31 (1937).°

* The most widely accepted meaning of “general warrant” was “a

warrant that lacked specificity as to whom to arrest or where to search;

for example, a warrant directing arrests of ‘suspected persons’ or a

search of ‘suspicious places.’” Davies, 98 Mich. L. Rev. 547 n. 12 (1999).

* Indeed, according to one commentator, these suspicionless

seizures upon fiat of the king greatly influenced the text of Article 14 of

the Massachusetts Declaration of Rights adopted in 1780 which, in

turn, served as a model for the Fourth Amendment. Article 14 of the

Massachus°tts Declaration of Rights provided that “[e]very subject has

a right to be secure from all unreasonable searches and seizures of his

person, his house, his papers, and all his possessions. All warrants,

therefore, are contrary to this right, if the cause or foundation of them

be not previously supported by oath or affirmation, and if the order in

the warrant to a civil officer, to make search in suspected places, or to

arrest one or more suspected persons, or to seize their property, be not

accompanied with a special designation of the person or objects of

search, arrest, or seizure; and no warrant ought to be issued, but in

cases, and with the formalities prescribed by the laws.” E. Washburne,

Massachusetts Bill of Rights, Massachusetts Historical Society Proceed-

ings, 1864-1865 (Boston, 1866), VIII, 312-313 (emphasis added).

8

The framers of the Fourth Amendment were also

greatly influenced by several highly publicized English

cases. In particular, in 1762, John Wilkes, then a member

of Parliament, published, anonymously, a series of pam-

phlets called The North Briton, which criticized the

policies of the Tory government. In response, Lord Halifax

issued a general warrant to four messengers ordering

them “to make strict and diligent search for the authors,

printers, and publishers of seditious and treasonable

papers, entitled, The North Briton, No. 45, ... and them,

or any of them, having found, to apprehend and seize,

together with their papers.” Who should be arrested and

what should be seized was left completely to the discretion

of the messengers. In all, 49 persons were arrested. From

this group, it was ascertained that John Wilkes was the

author of The North Briton. Wilkes was arrested and later

released due to his privilege as a member of Parliament.

Wilkes and the other arrestees brought suit against the

messengers for trespass. Wilkes prevailed and the English

courts ruled that the general warrants to arrest and

search violated the common law. Further, Wilkes won a

verdict against the Secretary of State who had issued the

general warrant. In that suit, Chief Justice Pratt, address-

ing the power of messengers “to search wherever their

suspicions may chance to fall” and “where no offenders’

names are specified in the warrant,” stated “[i]f such a

power is truly invested in a secretary of state, and he can

delegate this power, it certainly may affect the person and

property of every man in this kingdom, and is totally

subversive of the liberty of the subject.” Wilkes v. Wood, 19

How. St. Tr. 1153, 98 Eng. Rep. 489 (K.B. 1763). It was this

hostility toward the arbitrary use of general warrants that

animated the framing of the Fourth Amendment. Payton v.

New York, 445 U.S. at 583 (“It is familiar history that

9

indiscriminate searches and seizures conducted under the

authority of ‘general warrants’ were the immediate evils

that motivated the framing and adoption of the Fourth

Amendment.”).

History also demonstrates that the framers had little

or no concern with whether arrests were made without a

warrant because of the very limited authority to arrest

under such circumstances at common law. See United

States v. Watson, 423 U.S. 411, 429 (1976) (“There is no

historical evidence that the Framers or proponents of the

Fourth Amendment, outspokenly opposed to the infamous

general warrants and writs of assistance, were at all

concerned about warrantless arrests by local constables

and other peace officers.”) (Powell, J. concurring). At

common law, a peace officer could arrest without a war-

rant under three circumstances: for an offense committed

or attempted in his presence; for commission of a felony if

the arrestee was actually guilty of the felony; or if a felony

in fact had actually been committed and there was “prob-

able cause of suspicion” to believe the arrestee was the

perpetrator. Davies, at 632.° Thus, at common law, arrests

* Amicus, Criminal Justice Legal Foundation (hereinafter CJLF),

cites the common law “hue and cry” in support of its argument that the

“common law did not require the constable to single out one individual

from a group of suspects before making an arrest.” Br. CJLF 10. Quite

to the contrary, the common law process of soliciting civilian assistance

to arrest suspected felons otherwise known as the “hue and cry”

required that the description of the suspect be as detailed as possible.

“If he knows the name of him that did it, he must tell the constable the

same. If he knows it not, but can describe him, he must describe his

person, or his habit, or his horse, or such circumstances that he knows,

which may conduce to his discovery ...” 2 M. Hale, The History of the

Pleas of the Crown 100-01 (1847).

10

based on probable cause alone were insufficient. The

arresting peace officers had to know that a felony in fact

had been committed as well as have probable cause to

suspect that a particular person committed the felony.

In England, it was not until 1827, after the Fourth

Amendment had been ratified, that the authority to arrest

on probable cause alone was established. Beckwith v.

Philby, 108 Eng. Rep. 585 (1827). The first reported

American cases to endorse the probable cause standard for

warrantless arrests appear to be Russell v. Shuster, 8

Watts & Serg. 308, 309 (Pa. 1844), and Rohan v. Sawin, 59

Mass. (5 Cush.) 281 (1850). Davies, at 636-37. While the

need to establish that a felony in fact had been committed

was no longer necessary, the requirement of individualized

suspicion remained.

B. Cases from this Court hold that individu-

alized suspicion is a core component of

probable cause to search or arrest.

As noted by Petitioner, Br. Pet. 12, the most complete

explanation of probable cause was given by this Court in

Brinegar v. United States, 338 U.S. 160 (1949), which, in

part, defined probable cause as requiring “less than

evidence which would justify ... conviction” but “more

than bare suspicion.” Brinegar, 338 U.S. at 175. The Court

was careful to point out that its definition of probable

cause “seek[s] to safeguard citizens from rash and unrea-

sonable interferences with privacy and from unfounded

charges of crime” while at the same time “seek[s] to give

fair leeway for enforcing the law in the community's

protection.” Brinegar, 338 U.S. at 176. The Court acknowl-

edged that “room must be allowed for some mistakes” but

that “those mistakes must be those of reasonable men,

—

11

acting on facts leading sensibly to their conclusions of

probability” so that “law-abiding citizens [are not left) at

the mercy of the officers’ whim or caprice.” Jd. The Court

in Brinegar qualified its statement regarding mistakes by

referencing its decision in Carroll v. United States, 267

U.S. 132 (1925).

Carroll is most notable for developing the “automobile

exception” to the warrant requirement. In Carroll, the

police, without a warrant, stopped a car on suspicion that

it contained illegal liquor. Given the impracticability of

securing a warrant “because the vehicle can be quickly

moved out of the locality or jurisdiction in which the

warrant must be sought,” the Court ruled that “contra-

band goods concealed and illegally transported in an

automobile or other vehicle may be searched for without a

warrant.” Carroll, 267 U.S. at 153-54. Notwithstanding

this otherwise broad authority to search, the Court em-

phasized that the authority to search was not unlimited.

“It would be intolerable and unreasonable if a prohibition

agent were authorized to stop every automobile on the

chance of finding liquor, and thus subject all persons

lawfully using the highways to the inconvenience and

indignity of such a search.” Jd. Echoing this limitation, the

Court in Brinegar held that “[t]his does not mean, as

seems to be assumed, that every traveler along the public

highways may be stopped and searched at the officers’

whim, caprice or mere suspicion.” Brinegar, 338 U.S. at

177.

This Court revisited the question of probable cause in

Illinois v. Gates, 462 U.S. 213 (1983), holding that a

totality of the circumstances analysis must guide probable

cause determinations. In so holding, the Court cited with

approval United States v. Cortez, 449 U.S. 411 (1981). The

12

Cortez Court was concerned with whether a sufficient

basis existed to justify an investigative stop of a car by

border patrol officers. The Court in Cortez explained:

But the essence of all that has been written is

that the totality of the circumstances — the whole

picture — must be taken into account. Based upon

that whole picture the detaining officers must

have a particularized and objective basis for sus-

pecting the particular person stopped of criminal

activity. ...

The idea that an assessment of the whole

picture must yield a particularized suspicion con-

tains two elements, each of which must be pre-

sent before a stop is permissible. First, the

assessment must be based upon all the circum-

stances.

* * *

The second element contained in the idea that an

assessment of the whole picture must yield a

particularized suspicion is the concept that the

process just described must raise a suspicion that

the particular individual being stopped is en-

gaged in wrongdoing.

Cortez, 449 U.S. at 417-18 (emphasis added).

In Carroll, Brinegar, and Gates, the Court reaffirmed

the requirement of particularized suspicion. In those

cases, the suspicion was focused on particular suspects

and the issue was whether there was sufficient probable

cause to believe that a crime had been committed. In the

case now before the Court, the focus is not on whether

there was probable cause to believe that a crime had been

committed, for there plainly was. The question, rather, is

13

whether the police had probable cause to arrest Respon-

dent, for whom there was no particularized suspicion of

wrongdoing. The issue is not completely foreign to this

Court as the path was trod over fifty years ago, was

reaffirmed as recently as four years ago, and remains

consistent with the common law requirement of particu-

larized suspicion.

In United States v. Di Re, 332 U.S. 581 (1948), an

informant named Reed notified government agents that he

was to buy counterfeit gasoline ration coupons from a man

named Buttitta at a specified location. The agents followed

Buttitta’s car to that location. When the agent approached

the car, he found Buttitta in the driver’s seat, Reed in the

rear seat and Di Re in the front passenger seat. Reed was

holding in his hand two counterfeit gasoline ration cou-

pons. When asked, Reed stated that he obtained the

coupons from Buttitta. The agent arrested all three

occupants of the car and found counterfeit coupons during

a search of Di Re. Di Re, 332 U.S. at 583.

Regarding the validity of Di Re’s arrest, the Court

first found it necessary to determine the particular offense

for which Di Re had been arrested. Di Re, 332 U.S. at 591.

See Brinegar, 338 U.S. at 175 (“[tJhe standard of proof is

accordingly correlative to what must be proved.”). Given

the absence of an applicable federal statute, the Court

noted that “the law of the state where an arrest without

warrant takes place determines its validity.” Di Re, 332

U.S. at 589. The applicable New York statute allowed

arrest for a misdemeanor if “committed in the arresting

officer’s presence,” and, for a felony, the officer had to have

14

“reasonable grounds to believe the person to be arrested .. .

committed [the felony].” Di Re, 332 U.S. at 589 n. 7 (em-

phasis added).’ The Government, on appeal, conceded that

Di Re could not have been arrested for the misdemeanor of

knowingly possessing counterfeit gasoline ration coupons

since Reed was the only person “who was found visibly

possessing the coupons.” Di Re, 332 U.S. at 592.

Turning to the existence of probable cause to arrest for

the felony of possessing a known counterfeit writing with

intent to utter it as true for the purpose of defrauding the

Government, the Court noted that “[aJll [the Government]

had was [Di Re’s] presence, and if his presence was not

enough to make a case for arrest for a misdemeanor, it is

hard to see how it was enough for the felony. . .” Di Re,

332 U.S. at 592. Pointing to the difference between the

" The applicable Maryland statute is similar:

§2-202. Warrantless arrests - In general.

(a) Crime committed in presence of police officer. - A

police officer may arrest without a warrant a person who

commits or attempts to commit a felony or misdemeanor in

the presence or within the view of a police officer.

(b) Probable cause to believe crime committed in pres-

ence of officer. — A police officer who has probable cause to

believe that a felony or misdemeanor is being committed in

the presence or within the view of the police officer may ar-

rest without a warrant any person whom the police officer

reasonably believes to have committed the crime.

(c) Probable cause to believe felony committed. - A po-

lice officer without a warrant may arrest a person if the po-

lice officer has probable cause to believe that a felony has

been committed or attempted and the person has committed

or attempted to commit the telony whether or not in the

presence or within the view of the police officer.

Md. Code Ann., Crim. Proc. Art., §2-202 (2001).

15

misdemeanor offense of knowing possession of counterfeit

gasoline ration coupons and the felony offense of posses-

sion with intent to utter as true, the Court explained:

The relevant difference between [the misde-

meanor] and [the felony] is that the former de-

clares mere possession of a counterfeit coupon an

offense, while the latter defines a felony which

consists not merely of possession but also of

knowledge of the instrument’s counterfeit charac-

ter, and also of intent to utter it as true. It is ad-

mitted that at the time of the arrest the officers

had no information implicating Di Re and no in-

formation pointing to possession of any coupons,

unless his presence in the car warranted that in-

ference. Of course they had no information hint-

ing further at the knowledge and intent required

as elements of the felony under the statute.

Di Re, 332 U.S. at 592 (emphasis added). Thus, like the

Court of Appeals of Maryland in Respondent’s case, the

Court undertook an analysis of the character of the par-

ticular offense, including its relevant elements, for which

the Government claimed to have probable cause to arrest."

Di Re’s presence in the car, without more, was deemed

* The Court of Appeals of Maryland held that

[T]o 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 therefrom, would lead a

reasonable person to believe that a felony has been or is be-

ing 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 individ-

ual for that specific offense. Pet. App. 20a-21a.

16

insufficient to give the officer probable cause to believe Di

Re either knowingly possessed the ration coupons or knew

of their counterfeit character.

Of particular importance to Respondent’s case is the

acknowledgment in Di Re that probable cause must be

analyzed in relation to the elements of the offense for

which one is arrested. As noted earlier, Respondent was

charged with possessing cocaine with the intent to distrib-

ute. The Court of Appeals of Maryland thus examined,

quite appropriately, the elements of this offense including

“the exercise of actual or constructive dominion or control

over a thing” and “knowledge of the controlled dangerous

substance.” Pet. App. 8a-9a.’ The Court of Appeals of

Maryland also reached the proper conclusion that, as in Di

Re, Respondent’s presence in the car where cocaine was

found hidden in the back seat, without more, does not

constitute probable cause to believe Respondent either

knew of the presence of the drug or exercised any domin-

ion or control over it.

The Court in Di Re also examined the facts for any

inferences of participation by Di Re in the sale of the

ration coupons by Buttitta to Reed that would establish

probable cause to arrest for conspiracy. The Court held:

There is no evidence that it is a fact or that the

officers had any information indicating that Di

Re was in the car when Reed obtained ration

* Even the dissenters in the Court of Appeals of Maryland ac-

knowledged that “the arresting officer must comprehend that which

‘possession of a controlled dangerous substance’ entails.” Pet. App. 39a.

17

coupons from Buttitta, and none that he heard or

took part in any conversation on the subject.

* * *

An inference of participation in conspiracy does

not seem to be sustained by the facts peculiar to

this case. The argument that one who ‘accompa-

nies a criminal to a crime rendezvous’ cannot be

assumed to be a bystander, forceful enough in

some circumstances, is farfetched when the

meeting is not secretive or in a suspicious hide-

out but in broad daylight, in plain sight of

passersby, in a public street of a large city, and

where the alleged substantive crime is one which

does not necessarily invelve any act visibly

criminal. If Di Re had witnessed the passing of

papers from hand to hand, it would not follow

that he knew they were ration coupons, and if he

saw that they were ration coupons, it would not

follow that he would know them to be counter-

feit. Indeed it appeared at the trial to require an

expert to establish that fact. Presumptions of

guilt are not lightly to be indulged from mere

meetings.

Di Re, 332 U.S. at 593.” Like the situation in Di Re, there

was nothing visibly criminal done in Respondent’s

” The U.S. Solicitor General asserts that “[e]ven if the drugs are

hidden from plain view by the time they are discovered by police

officers, the fact that a party attempted to conceal the drugs within the

passenger compartment indicates that the contraband had been

manipulated in the presence of the other occupants.” Br. U.S. 15. There

is absolutely no indication in the record that the cocaine found secreted

in the back seat had been “manipulated” in anyone’s presence, let alone

in Respondent’s.

18

presence, hence, no reasonable inference of participation

by Respondent in the possession of the hidden cocaine

could be drawn solely from his presence in the car.

Johnson v. United States, 333 U.S. 9 (1948), was

decided one month after Di Re. In Johnson, an informant

directed experienced narcotics officers to a specified hotel,

claiming that persons inside were smoking opium. From

the hallway in the hotel the officers detected the smell of

burning opium and traced the odor to Room No. 1. Not

knowing who occupied the room, the officers knocked and,

when a voice from within asked who was there, one of the

officers identified himself. After a slight delay, a woman

answered the door and, after being told that the officer

wished to speak to her “about this opium smell,” she

stepped back and admitted the officers. When the occu-

pant denied that there was a smell of opium, the officer

said, “I want you to consider yourself under arrest because

we are going to search the room.” The search turned up

opium. Johnson, 333 U.S. at 12. The Government defended

the search as one conducted incident to arrest. Johnson,

333 U.S. at 13.

Addressing the legality of the arrest this Court held:

The Government, in effect, concedes that the ar-

resting officer did not have probable cause to ar-

rest petitioner until he had entered her room and

found her to be the sole occupant. It points out

specifically, referring to the time just before en-

try, “For at that time the agents did not know

whether there was one or several persons in the

room. It was reasonable to believe that the room

might have been an opium smoking den.” And it

says, “. . . that when the agents were admitted

into the room and found only the petitioner

19

present they had a reasonable basis for believing

that she had been smoking opium and thus illic-

itly possessed the narcotic.” Thus the Govern-

ment quite properly stakes the right to arrest, not

on the informer’s tip and the smell the officers

recognized before entry, but on the knowledge that

she was alone in the room, gained only after, and

wholly by reason of, their entry of her home.

333 U.S. at 16 (emphasis added; footnote omitted). Quite

clearly, since the officers could not have focused their

suspicion on Johnson in particular until after they had

illegally entered her hotel room, the arrest was illegal. The

Court, therefore, ruled that the officers did not have

probable cause to arrest Johnson at the moment just prior

to the entry. Alth »ugh, as it turned out, Johnson was, in

fact, alone in the ruom, the officers did not know this fact

at the time of the arrest. If the hotel room had, in fact,

been a “smoking den,” then Johnson’s mere presence,

without more, would not have established probable cause

for her arrest.

Wong Sun v. United States, 371 U.S. 471 (1963), also

concerned whether probable cause existed to arrest a

particular individual. Armed only with information from

an untested informant that he had purchased an ounce of

heroin from “Blackie Toy, [a] proprietor of a laundry on

Leavenworth Street,” police arrested James Wah Toy, the

operator of a laundry establishment known as “Oye’s

Laundry” on Leavenworth Street. This Court soundly

rejected the Government’s argument that Toy’s arrest was

legal.

We have held that identification of the suspect by

a reliable informant may constitute probable

cause for arrest where the information given is

20

sufficiently accurate to lead the officers directly

to the suspect.... That rule does not, however,

fit this case. For aught that the record discloses,

[the informant’s] accusaticn merely invited the

officers to roam the length of Leavenworth Street

(some 30 blocks) in search of one ‘Blackie Toy’s’

laundry — and whether by chance or other means

(the record does not say) they came upon peti-

tioner Toy’s laundry, which bore not his name

over the door, but the unrevealing label ‘Oye’s.’

Not the slightest intimation appears on the re-

cord, or was made on oral argument, to suggest

that the agents had information giving them rea-

son to equate ‘Blackie’ Toy and James Wah Toy —

e.g., that they had the criminal record of a Toy, or

that they had consulted some other kind of offi-

cial record or list, or had some information of

some kind which had narrowed the scope of their

search to this particular Toy.

Wong Sun, 371 U.S. at 480-81 (emphasis added). The

Court compared the action of the police there to “the

wholesale or ‘dragnet’ search warrant, which we hae

condemned.” Wong Sun, 371 U.S. at 482 n. 9. Officer

Snyder, in the instant case, similarly failed to narrow the

focus of his arrest. Indeed, to the contrary, he admittedly

arrested all three occupants because he could not ceter-

mine who possessed the cocaine.

Di Re, Johnson, and Wong Sun, like Respondent’s

case, examined the existence of probable cause in the

context of warrantless arrests and demonstrate the

Court’s adherence to the common law requirement of

particularized suspicion.

The Court applied the same requirement of individu-

alized suspicion in the context of a search conducted

eee

21

pursuant to a warrant in Ybarra v. Illinois, 444 U.S. 85

(1980). After investigating information obtained from an

informant, Illinois police officers obtained a warrant to

search the Aurora Tap Tavern, a small, one-room bar.

Ybarra, 444 U.S. at 88. The probable cause detailed in the

warrant application indicated that the bartender of the

tavern was engaged in the sale of heroin which he kept

behind the bar. Ybarra, 444 U.S. at 88. The warrant

authorized the search of the tavern as well as the person

of ‘Greg,’ the bartender, for evidence of possession of

narcotics. Ybarra, 444 U.S. at 88.

Seven or eight officers proceeded to the tavern to

execute the warrant. Once there, they advised all patrons

of their purpose and further stated that they were going to

conduct a “cursory search for weapons” on each of the

patrons. Ybarra, 444 U.S. at 88. Ybarra was standing in

front of the bar when he was frisked twice. Ybarra, 444

U.S. at 89. During the second frisk, the officer found

heroin in a cigarette pack taken from Ybarra’s pants

pocket. Ybarra challenged the authority of the police,

while executing a valid search warrant, to search his

person absent any information in the warrant casting

suspicion upon him. Ybarra, 444 U.S. at 89. The Court

reversed Ybarra’s conviction and held:

It is true that the police possessed a warrant

based on probable cause to search the tavern in

which Ybarra happened to be at the time the

warrant was executed. But, a person’s mere pro-

pinquity to others independently suspected of

criminal activity does not, without more, give rise -

to probable cause to search that person. . .. Where

the standard is probable cause, a search or sei-

zure of a person must be supported by probable

cause particularized with respect to that person.

22

This requirement cannot be undercut or avoided

by simply pointing to the fact that coincidentally

there exists probable cause to search or seize an-

other or to search the premises where the person

may happen to be. The Fourth and Fourteenth

Amendments protect the “legitimate expectations

of privacy” of persons, not places.

Ybarra, 444 U.S. at 91 (emphasis added). As applied to

Respondent’s case, Ybarra is important for two reasons.

First, it clearly confirms that individualized suspicion is

an irreducible component in the probable cause equation.

Second, mere proximity in time and place to one commit-

ting a crime is insufficient, by itself, to constitute probable

cause. Thus, because Officer Snyder admittedly could not

narrow his suspicion to Respondent and relied solely on

Respondent’s presence in the car where drugs were discov-

ered, there was no probable cause justifying Respondent’s

arrest.

C. The need for individualized suspicion

prohibits arresting all occupants ofa car

based solely on the discovery of drugs in a

hidden compartment inside the car.

Petitioner concedes here that “suspicion did not focus

on a particular individual to the exclusion of others.” Br.

Pet. 25. Nevertheless, Petitioner asserts that Officer

Snyder properly arrested all of the occupants because “a

common sense inference can be drawn that any or all of

the occupants have krowledge of the drugs found in the

car” and it can be inferred “that persons traveling together

in a private passenger car know each other and are en-

gaged in a common enterprise.” Br. Pet. 17-18 (emphasis

added). Petitioner cites a number of cases in support of

ee ee ee ee ee

23

these asserted “common sense inferences” claiming that

the cases are “factually analogous.” See, e.g., New York v.

Belton, 453 U.S. 454 (1981); United States v. Hensley, 469

U.S. 221 (1985); County Court of Ulster County v. Allen,

442 U.S. 140 (1979). Br. Pet. 17.

However, these cases are not analogous at all and, the

distinctions between them and the case at bar are critical.

First, the legality of the arrest was not at issue in any of

the cases cited by Petitioner. Thus, the Court had no

occasion to pass on the existence, vel non, of probable

cause. Second, in each of the cases cited by Petitioner, the

contraband found within the car stopped by the police,

unlike the hidden drugs in Respondent’s case, was in plain

view of both the driver and the passenger. Thus, had the

issue in these cases concerned the legality of the arrests,

the fact that both the driver and passengers had knowl-

edge of and control over the contraband surely would have

constituted probable cause to arrest. Belton, 453 U.S. at

455-56 (1981) (Officer smelled burnt marijuana and saw,

in plain view, on the floor of the car an envelope marked

‘supergold.’); Hensley, 469 U.S. at 224 (Officer “stepped up

to the open passenger door of Hensley’s car and observed

the butt of a revolver protruding from underneath the

passenger’s seat.”); Allen, 442 U.S. at 164 (“(TJhe case is

tantamount to one in which the guns were lying on the

floor or the seat of the car in plain view of the three other

occupants of the automobile.”). When contraband is

within the plain view and control of all occupants of a

vehicle, the arrest of all occupants within the vehicle is

" The Court, in Allen, noted that, at trial, counsel referred to the

.45-caliber automatic pistol as a “cannon.” Allen, 442 U.S. at 165 n. 24.

24

fully consistent with Di Re. In Di Re, the Court rejected

the argument that probable cause to arrest existed be-

cause, inter alia, “the alleged substantive crime is one

which does not necessarily involve any act visibly crimi-

nal.” Di Re, 332 U.S. at 593 (emphasis added).

The Allen case is inapposite for an additional reason.

Allen concerned an issue of evidentiary relevancy. The

jurors were instructed, pursuant to a New York statute,

that they could infer possession of a weapon from presence

in the car. Allen challenged the constitutionality of that

statutory presumption as applied to the facts in his case.

Finding the statute constitutional, the Court held that the

presumption was permissive rather than mandatory. In

assessing whether the inference was permissive or manda-

tory, the Court looked to whether there was a rational

connection between the fact proved (presence) and the fact

presumed (possession). In concluding that there was a

rational connection, the Court stated that

. . . the facts strongly suggest that Jane Doe was

not the only person able to exercise dominion

over [the guns]. The two guns were too large to

be concealed in her handbag. The bag was conse-

quently open, and part of one of the guns was in

plain view, within easy access of the driver of the

car and even, perhaps, of the other two respon-

dents who were riding in the rear seat.

Allen, 442 U.S. at 164 (footnotes omitted). The Court held

that “it is surely rational to infer that each of the respon-

dents was fully aware of the presence of the guns and had

both the ability and the intent to exercise dominion and

control over the weapons.” Allen, 442 U.S. at 164.

25

What is significant, and relevant to Respondent’s case,

is the comparison drawn by the Allen Court between the

presumption available in Allen to that found unconstitu-

tional in United States v. Romano, 382 U.S. 136 (1965).

Allen, 442 U.S. at 157. In Romano, the defendant was

charged, inter alia, with possessing an illegal liquor still

after Government agents executing a search warrant

found Romano standing a few feet from an operating still.

As to that charge, the judge instructed the jury that “the

presence of the defendant at the site of an illegal still

‘shall be deemed sufficient evidence to authorize convic-

tion, unless the defendant explains such presence to the

satisfaction of the jury.’” Romano, 382 U.S. at 138. This

Court affirmed the reversal of Romano’s conviction for

possession finding that the mandatory presumption within

the statute was unconstitutional. What the Court stated

regarding the statutory inference is relevant here:

... if there was ‘no rational connection between

the fact proved and the ultimate fact presumed,

if the inference of the one from proof of the other

is arbitrary because of lack of connection between

the two in common experience. .. . [WJhere the in-

ference is so strained as not to have a reasonable

relation to the circumstances of life as we know

them it is not competent for the legislature to

create it as a rule governing the procedure of

courts.’

Romano, 382 U.S. at 139, quoting Tot v. United States, 319

U.S. 463, 467-68 (1943) (emphasis added). Thus, in strik-

ing down the statute, the Court found that inferring

possession from mere presence near the still was arbitrary

and strained in light of common experience and “the

circumstances of life as we know them.” If, as Petitioner

argues, “common sense inferences about human behavior

26

and everyday life can and should be factored into the

probable cause determination,” Br. Pet. 16, Romano

suggests that it is not within the realm of common sense to

draw an inference of possession from mere proximity. That

connection is even more tenuous when, as in the case sub

judice, the item Respondent was deemed to possess was

concealed.

While conceding that the case does not concern prob-

able cause to arrest, Br. Pet. 18, Petitioner also relies on

Wyoming v. Houghton, 526 U.S. 295 (1999), as analogous

both in its facts and rationale. Br. Pet. 19. But Houghton

involved the validity of the search of a passenger’s purse

found inside an automobile for which probable cause to

search for contraband existed. The police had probable

cause to search for drugs in the car in which Houghton

was a passenger. When she exited the car, Houghton left

her purse on the back seat. The searching officer looked

inside the purse and discovered contraband. Houghton,

526 U.S. at 297. The Court in Houghton was concerned

with the scope of a search under the Carroll doctrine,

specifically, whether or not that doctrine would permit the

search of a passenger’s personal belongings which could

conceal the object of the search. Houghton, 526 U.S. at

300. It did not involve the far more intrusive arrest of the

passenger as is the issue in the case at bar. It was in this

context that the Court, in dicta, stated that car passengers

“will often be engaged in a common enterprise with the

driver, and have the same interest in concealing the fruits

or the evidence of their wrongdoing.” Houghton, 526 U.S.

at 304-05. From this benign statement in dicta, Petitioner

leaps to the conclusion that this inference of “common

enterprise” would allow the police to conduct a “severe

intrusion on an individual’s liberty.” Atwater v. Lago Vista,

)

27

532 U.S. at 365 (O’Connor, J., dissenting). No matter how

Petitioner attempts to phrase it, at bottom Petitioner

urges that an arrest may be based on nothing more than

guilt by association, a proposition which this Court

soundly rejected almost 35 years ago. Sibron v. New York,

392 U.S. 40, 62 (1968) (“The inference that persons who

talk to narcotics addicts are engaged in the criminal traffic

in narcotics is simply not the sort of reasonable inference

required to support an intrusion by the police upon an

individual’s personal security.”).

Furthermore, the assertion of the U.S. Solicitor

General challenging the “continuing vitality of Di Re” in

light of this Court’s decision in Houghton, Br. U.S. 7, is

curious. The Houghton opinion itself reaffirmed the

continued vitality of Di Re. The Court distinguished Di Re

and Ybarra, declaring that those cases turned on “the

unique, significantly heightened protection afforded

against searches of one’s person,” and noted that “[s)uch

traumatic consequences are not to be expected when the

police examine an item of personal property found in a

car.” Houghton, 526 U.S. at 303 (emphasis added). More-

over, in his concurring opinion, Justice Breyer emphasized

“certain limitations” upon the scope of the Houghton

ruling stating:

Obviously, the rule applies only to automobile

searches. Equally obviously, the rule applies only

to containers found within automobiles. And it

does not extend to the search of a person found in

that automobile. As the Court notes, and as

United States v. Di Re, 332 U.S. 581, 586-87, 68

S.Ct. 222, 92 L.Ed. 210 (1948), ... makes clear,

the search of a person, including even ‘a limited

search of the outer clothing,’ ante, at 1302 (quot-

ing Terry v. Ohio, 392 U.S. 1, 24-25, 88 S.Ct.

28

1868, 20 L.Ed. 889 (1968)), is a very different

matter in respect to which the law provides “sig-

nificantly heightened protection.”

Houghton, 526 U.S. at 308 (Breyer, J. concurring) (empha-

sis added). That “very different matter” referred to by

Justice Breyer is now before the Court.

It bears pointing out that Petitioner’s “practical”

approach, Br. Pet. 7, to determining the existence of

probable cause to arrest in this case is anything but

practical. Petitioner’s argument that all occupants of a car

may lawfully be arrested when drugs are found in a

hidden compartment within the car is qualified. According

to Petitioner,

The determination whether there is probable

cause to arrest multiple occupants of a car might

not be quite so clear in all cases. In other scenar-

ios, the vehicle may be larger than the one here

or configured differently than a sedan, the stop

may be during daylight hours, or the drugs may

be found in a locked console, in the trunk, or

even on the person of one of the occupants.

Br. Pet. 24. As a further caveat, Petitioner notes that

probable cause to arrest all persons within a vehicle would

not exist “where there is no nexus among the persons,

such as in a cab, bus, or other common carrier.” Br. Pet. 25.

Thus, it would appear that whether probable cause can be

found to exist, by Petitioner’s calculus, turns on such

niceties as the size and configuration of the vehicle.

Presumably, occupants of compact cars will be subject to

virtually automatic arrest while occupants of mobile

iz

Pees ee Oe

29

homes, recreational vehicles, vans, sport utility vehicles,

and stretch limousines will enjoy greater rights.” Peti-

tioner’s method of determining whether there is probable

cause to arrest is no method at all. It is unworkable and

provides no guidance to police in calculating whether or

not they can arrest.

The U.S. Solicitor General takes a different approach

and declares that “the presence of drugs — without more —

immediately reveals criminal activity” supporting “an

inference that all of the car’s occupants were aware of, and

hence involved with, the drugs,” Br. U.S. 15 (citation

omitted). Such an assertion ignores this Court’s repeated

cautions against dragnet arrests.” In only very limited

circumstances has this Court condoned broad, suspi-

cionless searches and seizures. And even then, it has done

so only “[wJhen such ‘special needs’ — concerns other than

crime detection — are alleged in justification of a Fourth

Amendment intrusion . . . ” Chandler v. Miller, 520 U.S.

305, 313 (1997). See, e.g., Board of Education v. Earls, 536

U.S. 822 (2002) (drug testing of students who participate

in extra-curricular activities); Vernonia School Dist. 472 v.

Acton, 515 U.S. 646 (1995) (random drug testing of student

" According to the Federal Highway Statistics Report, in 2001,

there were 18,222,321 vans and 24,297,697 sport utility vehicles on the

road. Together they total approximately 24% of the total number of

vehicles on the road.

* Moreover, it reveals a total disregard for the realities of daily life.

According to the U.S. Census for the year 2000, 15,634,051 people car

pooled to work each day. This constituted 12.2% of the workforce.

Members of those car pools would, no doubt, be astonished to learn that

they had best search the car and its occupants before accepting the ride,

lest they be subject to arrest for possessing an item of contraband

hidden somewhere, indeed anywhere, within the car.

30

athletes); Treasury Employees v. Von Raab, 489 U.S. 656

(1989) (drug testing for United States Customs Service

employees); Michigan Dept. of State Police v. Sitz, 496 U.S.

444 (1990) (sobriety checkpoints aimed at removing

dangerous drivers from the road).

The only “special need” asserted by the U.S. Solicitor

General for such broad-based authority to arrest absent

individualized suspicion seems to be to assist the police in

“facilitat{ing] further investigation ...” Br. U.S. 30.

Indeed, Amicus, CJLF asserts that such sweeping arrests

are “essential to the continuing investigation of a crime,”

so as to allow for such further police tactics as custodial

interrogation. Br. CJLF 19. The argument of Petitioner

and Amici in this regard is reminiscent of that made by

the State in Davis v. Mississippi, 394 U.S. 721 (1969),

where the State defended the round-up of 24 African

American men for the purpose of fingerprinting them

during an ongoing investigation into an alleged rape. The

men were released without being charged after the finger-

printing was completed. Davis, 394 U.S. at 722. The State,

while admitting that the detentions were conducted

without warrants and without probable cause, neverthe-

less contended that “the detention occurred during the

investigatory rather than accusatory stage and thus was

not a seizure requiring probable cause.” Davis, 394 U.S. at

726. The Court rejected this rationalization:

It is true that at the time of the December 3

detention the police had no intention of charging

petitioner with the crime and were far from mak-

ing him the primary focus of their investigation.

But to argue that the Fourth Amendment does

not apply to the investigatory stage is fundamen-

tally to misconceive the purposes of the Fourth

Se ee

31

Amendment. Investigatory seizures would sub-

ject unlimited numbers of innocent persons to

the harassment and ignominy incident to invol-

untary detention. Nothing is more clear than

that the Fourth Amendment was meant to pre-

vent wholesale intrusions upon the personal se-

curity of our citizenry, whether these intrusions

be termed ‘arrests’ or ‘investigatory detentions.’

Davis, 394 U.S. at 726-27. If the police cannot detain

individuals without individualized suspicion for the

purpose of fingerprinting, which the Court in Davis noted

constituted a “less serious intrusion upon personal secu-

rity,” they surely cannot arrest without individual suspi-

cion in order to facilitate further investigation. Davis, 394

U.S. at 727 (emphasis added).

This very argument was rejected by the Court in

Mallory v. United States, 354 U.S. 449 (1957), where the

question confronting the Court concerned the applicability

of Federal Rule of Criminal Procedure 5(a) requiring that

arraignment be held “without unnecessary delay.” Mallory

had been arrested along with two of his nephews as

suspects in a rape. He was held for an extended period of

time, during which police extracted a confession, before

being taken for arraignment. One of the arguments

pressed by the Government was that effective law en-

forcement should not be hampered. This is similar to the

argument presented by Petitioner and Amici. Br. Pet. 24-

29; Br. U.S. 23-30; Br. CJLF 19-22. Rejecting that argu-

ment in Mallory, this Court stated:

Nor is there an escape from the constraint laid

upon the police by that Rule in that two other

suspects were involved for the same crime. Pre-

sumably, whomever the police arrest they must

arrest on ‘probable cause.’ It is not the function of

32

the police to arrest, as it were, at large and to use

an interrogating process at police headquarters in

order to determine whom they should charge be-

fore a committing magistrate on ‘probable cause.’

Mallory, 354 U.S. at 456 (emphasis added). The tactic that

the Court rejected in Mallory was exactly the tactic em-

ployed by Officer Snyder in the instant case.”

Police simply may not arrest first and sort out the

probable cause later.”

Amicus, CJLF further asserts that “[g]iven the impor-

tance of interrogations and confessions to solving crimes,

... the ability to arrest suspects is essential to the con-

tinuing investigation of a crime.” Br. CJLF 19. The same

sort of claim was made and turned aside in Di Re where

the Court held:

We meet in this case, as in many, the appeal

to necessity. It is said that if such arrests and

searches cannot be made, law enforcement will

‘* Officer Snyder testified that he questioned each of the occupants

of the car in an attempt to discover who owned the drugs and that he

essentially threatened all of the occupants with arrest “if he didn’t find

out whose drugs” they were. (JA 52).

* In the Fourth Amendment context, the Court has been mindful

of the potential for abuse when interpreting the authority of the police

to act. See, e.g., Terry v. Ohio, 392 U.S. 1 (1968). Recently, in Prince

George’s County, Maryland, the police were taken to task for unneces-

sarily delaying presentment of defendants before a Commissioner after

arrest in order to obtain written statements. In two cases, the Court of

Appeals of Maryland reversed the convictions because of this abuse. See

Facon v. State of Maryland, 2003 WL 21361541 (2002) (delayed

presentment for 36 hours after arrest); Williams v. State of Maryland,

2003 WL 26361726 (2002) (delayed presentment for 47 hours after

arrest).

eS a AR eet on ae a

nae

33

be more difficult and uncertain. But the forefa-

thers, after consulting the lessons of history, de-

signed our Constitution to place obstacles in the

way of a too permeating police surveillance,

which they seemed to think was a greater danger

to a free people than the escape of some crimi-

nals from punishment.

Di Re, 332 U.S. at 595. That the job of the police in inves-

tigating a crime would be made easier by permitting

sweeping arrests is not a sufficient justification for dis-

pensing with the inviolate requirement of individualized

suspicion.

Petitioner gives short shrift to the effect of permitting

sweeping arrests noting that “[bly arresting all three, the

officer more precisely could determine criminal culpabil-

ity,” and remarking, as if this were a fairy tale with a

happy ending, that “Pringle confessed, and the other two

were set free.” Br. Pet. 25. This position ignores the very

real possibility that a defendant in Respondent’s position

would not confess, but would, in fact, invoke his right to

remain silent. Further, Petitioner gives no consideration to

the real potential that those subject to these suspicionless

arrests may be unable to post bail. According to statistics

from the Baltimore County Detention Center where the

three would have been incarcerated, the average number

of days spent in pre-trial detention on a felony charge is 77

days. (Baltimore County Sentenced Inmate Elapsed

Report, July 1, 2003, source, Baltimore County Detention

Center). The risk that innocent people will spend signifi-

cant periods of time incarcerated will be greatly enhanced

should the police be permitted to arrest all occupants of a

car containing hidden contraband regardless of a lack of

particularized suspicion.

34

The approach endorsed by Petitioner and Amici, that

is, arresting all occupants even absent a particularized

suspicion, Br. Pet. 25 and Br. U.S. 26, relies on the obser-

vation in Brinegar that “room must be allowed for some

mistakes.” Brinegar, 338 U.S. at 176. But the approach of

Petitioner and Amici goes too far. Petitioner and Amici

argue that Officer Snyder was justified in arresting all

three occupants even if there existed a strong likelihood

that innocent persons would be arrested. Br. Pet. 25; Br.

U.S. 25; Br. CJLF 13-14. But the reference in Brinegar to

the possibility of mistakes made by reasonable officers

should not be read as to weaken the level of particularized

suspicion necessary to constitute probable cause. The

primary question at issue in Brinegar was whether evi-

dence inadmissible in a criminal trial (hearsay) could form

the basis for a finding of probable cause in a pretrial

suppression hearing. The Court’s language in Brinegar

that recognizes and allows for some mistakes should be

understood as an acknowledgment of the possibility of

error in the probable cause determination only in the

sense that the fair probability standard for probable cause

would ensnare more innocent people than the beyond-a-

reasonable-doubt standard required in the criminal trial

because it is a less demanding standard. That is a far cry

from endorsing a police practice that foreseeably increases

the number of mistakes.

Moreover, the Court limited the room-for-mistakes

allowance to mistakes of “reasonable men, acting on facts

leading sensibly to their conclusions of probability.”

Brinegar, 338 U.S. at 176 (emphasis added). In other

words, by referring to room for mistakes, this Court’s

opinion in Brinegar should not be read to suggest that

police may arrest even those for whom there is no

35

individualized suspicion because mistakes will be made

which can be sorted out during subsequent investigation.

Rather, the reference to “mistakes” means simply that, in

calculating the probability that a particular person has

committed a crime, the police will fall short of certainty.

Rather than limit the number of reasonable mistakes

that may be made, Petitioner and Amici encourage mis-

takes by insisting that everyone, regardless of the lack of

individualized suspicion, should be arrested. Respondent’s

approach, on the other hand, discussed in the following

section, would allow the police to arrest the driver/owner

of the automobile as well as any passengers for whom a

reasonable individualized suspicion may be inferred from

the totality of the circumstances where contraband is

found concealed inside the car.

Il. UNDER THE TOTALITY OF THE CIRCUM-

STANCES, THERE WAS NO PROBABLE

CAUSE TO ARREST RESPONDENT.

Before undertaking an analysis of the totality of the

circumstances in this case, it is important to point out a

factual error made repeatedly by both Petitioner and

Amici in addressing the circumstances confronting Officer

Snyder at the time that he arrested all of the occupants of

the car. Continual reference is made in the briefs to the

fact that Officer Snyder found a “roll of cash,” Br. Pet. 9;

Br. U.S. 1, 7, 8, 9, 13, 16; a “large quantity of cash (per-

haps proceeds of drug sales),” Br. Pet. 22, 23; a “substan-

tial amount of cash,” Br. U.S. 2; “a roll of money totaling

$763,” Br. U.S. 2; a “bundle of cash,” Br. U.S. 9; a “large

roll of cash,” Br. CJLF 2; and “over $700,” Br. CJLF 5.

However, a careful reading of the record of the suppression

hearing reveals that Officer Snyder’s only reference to

36

what was discovered in the glove compartment was

described as “the money.” (JA 12). Neither the amount nor

any adjective to describe the amount was ever testified to

by anyone at the suppression hearing. Nor was any docu-

mentary evidence introduced at the suppression hearing

quantifying or describing the amount of money.” Thus, all

references made by Petitioner and Amici describing the

money reflect nothing more than reliance on facts not

before the suppression hearing judge.”

Distilled to its essence, the arrest of Respondent was

based on nothing more than his presence in a car in which

hidden drugs were discovered. But this Court has held in

both Di Re and Ybarra that mere presence is insufficient

to constitute probable cause to arrest or search. Officer

Snyder failed to articulate any fact that would support a

conclusion that Respondent, as the front seat passenger,

possessed the drugs hidden in the rear seat. He made no

furtive movements, he made no gestures and, at the scene

of the arrest, he said nothing of a suspicious nature; he

simply remained silent.

Given this dearth of information tying Respondent to

the contraband, Petitioner places significant reliance on

the inference that “the occupants are acquainted.” Br. Pet.

8. Even if the record supports an inference that the occu-

pants were friends, this alone would not amount to prob-

able cause to arrest Respondent. See Sibron, 392 U.S. at

* The actual amount was revealed during the trial on the merits.

" In Maryland, appellate review of the denial of a motion to

suppress is limited to information contained in the record of the

suppression hearing and not the record of the trial. Collins v. State, 367

Md. 700, 706, 790 A.2d 660 (2002).

37

40. For purposes of determining who should be arrested

under the circumstances of this case, the relationship of

the occupants as acquaintances, while a factor to be

considered, is not determinative. What is decisive is the

distinction that this Court has drawn between drivers and

passengers.

In Rakas v. Illinois, 439 U.S. 128 (1978), the defen-

dants were passengers in an automobile stopped by the

police who had reason to believe the automobile was the

getaway car involved in an earlier robbery. The occupants

were ordered out of the car, and a search revealed a box of

rifle shells in the glove compartment and a rifle under the

front passenger seat. The police arrested all of the occu-

pants. Rejecting the argumert that the defendants had

automatic standing to challenge the search and seizure,

this Court concluded that passengers in a vehicle who

asserted a possessory interest in neither the vehicle nor

the items seized did not have a reasonable expectation of

privacy therein. Specifically, the Court held:

But here petitioners’ claim is one which would

fail even in an analogous situation in a dwelling

place, since they made no showing that they had

any legitimate expectation of privacy in the glove

compartment or area under the seat of the car in

which they were merely passengers. Like the

trunk of an automobile, these are areas in which

a passenger qua passenger simply would not

normally have a legitimate expectation of pri-

vacy.

Rakas, 439 U.S. at 148-49. Thus, to the extent that one

has a reasonable expectation of privacy in a car, it is

reasonable for the police to presume he is aware of and can

control what is inside the car. If a passenger does not have

38

a reasonable expectation of privacy in a particular com-

partment, i.e., in a glove compartment or an upright

armrest within the car, then it is not reasonable for police

to presume that the passenger has awareness of and

control over what is inside those areas absent any facts

indicating to the contrary. The Rakas decision is consistent

with the notion that, without more information, as in the

case at bar, police may presume that a driver/owner, but

not a passenger, is aware of items hidden within a car. Cf.

Maryland v. Wilson, 519 U.S. 408, 413 (1997) (recognizing

the distinction between drivers and passengers by noting

that “[o]n the personal liberty side of the balance, the case

for the passengers is in one sense stronger than that for

the driver.”)."° That Officer Snyder recognized the superior

right of drivers to control the contents of their cars is

demonstrated by the fact that it was the driver, Parlo,

from whom he sought permission to search the car. Officer

Snyder did not ask either passenger for such permission.

In conclusion, there must exist a particularized basis

for suspecting that a passenger in a car where contraband

is hidden knowingly possesses the contraband in order t#

arrest the passenger. His mere status as a passenger is not

enough. The inferences that Petitioner suggests should be

drawn from Respondent’s presence in the cax are not

* Further, the reference in Houghton, 52% U.S. at 303, to the

reduced expectation of privacy that passengers “no less than drivers”

possess must be read in the context of the facts of that case which, as

stated earlier, concerned the search of = passenger's purse and not the

seizure of the passenger herself. W*th respect to the more intrusive

seizure of the person, even Houg#ton recognized the need for signifi-

cantly heightened protection.

39

reasonable and cannot support a conclusion that there was

probable cause to arrest Respondent.

¢

CONCLUSION

For the foregoing reasons, Respondent respectfully

requests that the judgment of the Court of Appeals of

Maryland be affirmed.

Respectfully submitted,

STEPHEN E. HARRIS

Public Defender

NANcyY S. FORSTER

Deputy Public Defender

SHERRIE GLASSER*

Assistant Public Defender

Counsel for Respondent

*Counsel of Record