Amicus Curiae Brief — Maryland v. Pringle

ourt, US.

FILED

MAY 2 3 2003

(

—_ OFFICE OF THE CLERK

No. 02-809

In The Supreme Court Of The United States

STATE OF MARYLAND,

Petitioner,

Vv.

JOSEPH JERMAINE PRINGLE,

Respondent.

ON WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF MARYLAND

BRIEF OF OHIO AND 20 OTHER STATES AS AMICI

CURIAE IN SUPPORT OF PETITIONER

JIM PETRO

Attorney General of Ohio

DOUGLAS R. COLE*

State Solicitor

*Counsel of Record

STEPHEN P. CARNEY

Senior Deputy Solicitor

DIANE RICHARDS BREY

Deputy Solicitor

M. SCOTT CRISS

Assistant Solicitor

30 East Broad Sireet, 17th FI.

Columbus, Ohio 43215

614-466-8980

614-466-5087 fax

Counsel for Amici States

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rw)

>

WILLIAM H. PRYOR JR.

Attorney General

State of Alabama

GREGG RENKES

Attorney General

State of Alaska

CHRISTOPHER L. MORANO

Chief State’s Attorney

State of Connecticut

M. JANE BRADY

Attorney General

State of Delaware

MARK J. BENNETT

Attorney General

State of Hawaii

LISA MADIGAN

Attorney General

State of Illinois

RICHARD P. IEYOUB

Attorney General

State of Louisiana

MICHAEL A. Cox

Attorney General

State of Michigan

JEREMIAH W. (JAY) NIXON

Attorney General

State of Missouri

MIKE MCGRATH

Attorney General

State of Montana

BRIAN SANDOVAL

Attorney General

State of Nevada

PATRICIA A. MADRID

Attorney General

State of New Mexico

W.A. DREW EDMONDSON

Attorney General

State of Oklahoma

ANABELLE RODRIGUEZ

Attorney General

Commonwealth of Puerto Rico

HENRY DARGAN MCMASTER

Attorney General

State of South Carolina

LARRY LONG

Attorney General

State of South Dakota

GREG ABBOTT

Attorney General

State of Texas

MARK L. SHURTLEFF

Attorney General

State of Utah

JERRY W. KILGORE

Attorney General

Commonwealth of Virginia

DARRELL V. MCGRAW JR.

Attorney General

State of West Virginia

TABLE OF CONTENTS

PAGE

Ener iil

STATEMENT OF AMICI INTEREST ............c0ccccecceeeeeeeeeenes |

SUMMARY OF ARGUMENT........0.:.ccscsccscccssscrssessssssesssecees 2

RUEEETIIEEITTD cncncnssisnanescensnesnennneessesneuveccssesensveccsenseeceossscosecsces 5

_ The Police Officers Here Had Probable Cause To

Believe That All Of The Car’s Occupants, Including

Respondent Pringle, Possessed Drugs, So The

Warrantless Arrest Of Pringle Was Valid ................ccccccccceees 5

L. Because Probable Cause To Arrest Does Not

Require Proof Sufficient To Sustain A

Conviction, There Is Probable Cause To Arrest

All Three Occupants Of A Car In Which Drugs

Are Found In The Passenger Compartment ............... 6

Il. Probable Cause Is Supported Here By The

Judgment That Passengers In A Private Car Are

Often Engaged In A Common Enterprise With

The Driver, And By The Principle That

Occupants Of A Car Jointly And Constructively

Possess Contraband Kept In The Passenger

il

Ill. Probable Cause To Arrest All Of A Car’s

Occupants Exists When A Crime, Such As Drug

Possession, Has Been Committed Within the

Passenger Compartment Of A Car, And No

Evidence Limits The Suspects To One

RUC cncnnsecsnssernsenscmemamsnsensensunenssscsueneenseeNeenesReanean 14

on 17

mmm me

TABLE OF AUTHORITIES

PAGE

Cases

Braxton v. State,

350 So. 2d 753 (Ala. 1977) ....cccccsssssss+vesssssssssessesssssss, 13

Brinegar v. United States,

338 U.S. 160 (1949) ..........sccssssscesssseessssssseeeeessses..., 3,7,8

Carroll v. United States,

G7 U.S. 132 (1925) .........csscsscsesessseesssseressseeessee. ce, 2, 6, 10

Chambers v. Maroney,

tg 7,10

Chimel v. California,

-tatirciear hess ces... ae 12

County Court of Ulster C. ounty, New York v. Allen,

Sy, Ea NE Passim

Draper v. United States,

“ptt cy 2,6

Fernandez v. Perez,

937 F.2d 368 (7th Cir. 1991)... ccccccseesessssseeooese..... 4, 13

Henry v. United States,

Sa Sates IE crccienctstetiinseeimmenieeee 14

Illinois v. Gates,

4O2 U.S. 203 (1963) nn ncccnccceecvceececerceeeeee..... passim

Maryland v. Wilson,

th TE 3, 10

National Safe Deposit Co. v. Stead,

DEP UB. SB CIDIS) ccccccccccccscecececcccscscsseccssscesesenssscscsoscess 11

New York v. Belton,

453 U.S. 454 (1GB1) ..ccccccccccccccscscccccccscscccsccccccssssssccsssece 12

People v. Vermouth,

20 Cal. App. 3d 746 (1971)......ccssseeesereenssresnnsnennnnnnnes 14

People v. Zeller,

51 TM. App. 3d 935 (1977) .....cccceseerseesersercnnnsnnsnenennenns 13

Sibron v. New York,

F992 U.S. 40 (19GB) ....cccccccccccccccccccscccsccccccccsccccesssesssoesees 15

Smith v. State,

363 So. 2d 21 (Fla. 1978) .....cccccccccccccsecccccsssccssssesesess 4,13

State v. Hanson,

588 N.W.2d 885 (S.D.), cert. denied,

$28 U.S. 835 (1999) ...cccccccccrccccsseesececccsssssssssessrorsosssseess 13

State v. Horton,

25 N.W.2d 362 (lowa), cert. denied,

$34 U.S. F2B (QOD1 ) nccccccccccccccccccccccsccccccccccsscccscsssssooeooes 13

State v. Mitchell,

482 N.W.2d 364 (Wisc. 1992) ..........ccccccceeeeeeeeeeeeeeeenees 14

United States v. Buckner,

79 F.3d 834 (9th Cir. 1999), cert. denied sub nom.

Murry v. United States, 528 U.S. 1094 (2000)......... 4, 13

United States v. Di Re,

332 U.S. 581 (1948) .......ccccccccsscrssseerecserecssseesssenes passim

United States v. Martinez,

588 F.2d 495 (Sth Cir. 1979) .........ccccccccccceeeeeeennenenennnnne 12

United States v. Martinez-Molina,

GO F358 TID (bat Cie. 19D) occcccccccccccccccseccsececeeesesesseess. 1]

Wyoming v. Houghton,

FD ae BO COD OD cxceceescscccestnccssessunmmssmsnssssnssssss passim

Ybarra vy. Illinois,

444 U.S. 85 (1979)

Statute

Md. Code Ann. Crim. Law. Art.,

SOSHSR S-PONGes) CIB) occeccccescccccccescccccsesssesenecsesocsveesseeeses 11

Other Authorities

Interim Report of Temporary State Commission to

Evaluate the Drug Laws, N.Y. Leg. Doc. No. 10

[Fon OUD crvsneeensenesatinanenatentenstdnsnsnmnsnasinetmeemeass 1]

Grano, “Probable Cause and Common Sense: a Reply

to the Critics of Illinois v. Gates,” 17 Journal of Law

OT 7

M. Hale, The History of the Pleas of the Crown (1736) ......... 7

Model Code of Pre-Arraignment Procedure

Ny GU iacticiieetnatcneciiiiecsteneataeeete 8

STATEMENT OF AMICI INTEREST

The State of Ohio, together with 20 other amici States

and Territories, join the State of Maryland in urging the

Court to reverse the decision of the Court of Appeals of

Maryland. The amici States and Territories suggest that

where a police officer faces evidence that a crime has been

committed by at least one of the occupants in an automobile

stopped by the police, the Fourth Amendment does not

require that all of the car’s occupants be allowed to go free

simply because the evidence fairly implicates all, rather than

one of, the suspects. For these reasons and those elaborated

below, we offer this brief to urge the Court to reverse the

decision of the Court of Appeals of Maryland and to confirm

that police officers who encounter multiple suspects traveling

together in a private vehicle in which drugs are found in the

passenger compartment are not prevented from arresting all

of the car’s occupants on drug charges when all of the

occupants deny ownership of the contraband.

The decision of the Maryland Court of Appeals in this

case—holding that a “police officer’s discovery of money in

a closed glove compartment and cocaine concealed behind

the rear armrest of the car is insufficient to establish probable

cause for an arrest of a front seat passenger,” Pet. App. at

23a—limits the arrest powers of law enforcement officers in

a way that the Fourth Amendment does not require. The

court below effectively imposed on law enforcement officers

at the time of arrest the kind of admittedly-higher standard

that the government must later meet at trial, a result not

compelled by this Court’s cases.

Amici States share a common interest in the ability of

their respective law enforcement officers and their local

communities to arrest suspected criminals when probable

Cause supports those arrests, and in allowing police officers

to make sound probable-cause-to-arrest decisions without

2

imposing on them the burden of deciding whether

prosecutors will later be able to prove the case at trial. roe

States respectfully urge this Court to reverse the judgment 0

the Court below and hold that under the totality of the

circumstances, a police officer faced with multiple occupants

of a car in which drugs and a roll of cash are found in the

passenger compartment has probable cause to arrest all of =

passengers for constructive possession of the drugs when a

of the occupants deny ownership of the contraband and no

other evidence points to only one of the suspects as the sole

wrongdoer.

SUMMARY OF ARGUMENT

This Court’s cases firmly establish that probable

cause to arrest exists “where ‘the facts and circumstances

within [the arresting 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.

Draper v. United States, 358 U.S. 307, 313 (1959), citing

Carroll y. United States, 267 U.S. 132, 162 (1925). Because

probabl< cause looks to the totality of the circumstances and

requires only the “probability or substantial chance of

criminal activity, not an actual showing of such activity,

Illinois v. Gates, 462 U.S. 213, 243 n..13 (1983), the police

in this case reasonably determined that there was probable

cause to arrest Pringle as well as the other two passengers In

the car. When none of the occupants of the car admitted

ownership of the drugs and the roll of cash found in the

passenger compartment, and no other evidence ettectivery

singled out one of the occupants as the perpetrator, there was

probable cause to arrest all of the occupants for constructive

possession of the drugs. The Maryland court’s contrary

conclusion cannot be squared with this Court’s precedent.

EP ge a ee

Taner

3

Whether single or multiple suspects are involved,

probable cause to arrest does not require proof sufficient to

establish guilt, Brinegar v. United States, 338 U.S. 160, 173

(1949), but instead requires “only the probability, not a prima

facie showing of criminal activity,” //linois v. Gates, 462

U.S. at 235. Accordingly, this Court’s cases do not require

that police narrow a list of likely suspects for a crime down to

one in order to make an arrest. Under the Maryland court’s

ruling in this case, it is questionable whether any of the three

occupants of the car in which Pringle was traveling could be

lawfully arrested for possession of the drugs, despite the

“substantial chance,” //linois v. Gates, 462 U.S. at 243 n. 13.

that each was involved in the criminal possession of cocaine.

Contrary to the Maryland court’s decision, where it is evident

that a crime has been committed and at least one of the

occupants of the car is the wrongdoer, probable cause exists

to arrest all three of the occupants of the car.

As part of police officers’ assessment of probable

‘cause in this setting, police officers should be able to

consider the likelihood that car passengers will be engaged in

a common enterprise with the driver. Wyoming v. Houghton,

526 U.S. 295, 304-05 (1999). Unlike a movie theater, a

public bus, or a restaurant or bar, cf. Pet. App. at 21a, n. 12:

Ybarra vy. Illinois, 444 U.S. 85 (1979), passengers in a private

automobile are likely to know one another and to have some

common purpose for traveling together. Cf. Maryland vy.

Wilson, 519 U.S. 408, 413-14 (1997) (permitting police to

order passengers as well as drivers out of a stopped vehicle to

preserve officer safety, on the assumption that the passenger

and the driver share a common goal).

Evidence that patent criminal activity is occurring in

the passenger compartment of a car strengthens the inference

of a “common enterprise” among the passengers and driver.

See County Court of Ulster County, New York v. Allen

(“Ulster County”), 442 U.S. 140 (1979) (upholding as

rational a statutory presumption that the presence in an

4

automobile of any firearm is evidence of its possession by all

persons occupying the automobile at the time the item is

found). Where the crime consists of joint and constructive

possession of contraband such as drugs or illegal weapons, it

is reasonable to conclude that contraband kept in the

passenger compartment of a car is within the dominion and

control of any occupant of the car. Cf. Ulster County, 442

U.S. 140; New York v. Belton, 453 U.S. 454, 460 (1981)

(permitting search of passenger compartment of automobile

in which person arrested was traveling).

The Maryland court’s ruling here significantly

undercuts police officers’ ability to consider these “practical,

commonsense conclusions about human behavior” in making

probable-cause-to-arrest determinations, cf. Illinois v. Gates,

462 U.S. at 231, as officers have done throughout the country

for years. See, e.g., United States v. Buckner, 179 F.3d 834

(9th Cir. 1999), cert. denied sub nom. Murry v. United States,

528 U.S. 1094 (2000) (probable cause to arrest both

occupants of car in which drugs were found); Fernandez v.

Perez, 937 F.2d 368, 370 (7th Cir. 1991) (probable cause to

arrest all three occupants of car because absent explanation to

the contrary, the metal-piercing bullets found in the car were

the property of one, two or all three of the occupants), Smith

v. State, 363 So.2d 21 (Fla. 1978) (probable cause to arrest

passenger when drugs found on seat between passenger and

driver: officer could not determine who owned drugs). The

Maryland court’s rule in this case threatens to have

significant detrimental effects on law enforcement efforts

throughout the country.

United States v. Di Re, 332 U.S. 581 (1948), does not

support the result reached by the Court of Appeals of

Maryland in this case. In Di Re, a government informant said

nothing to incriminate Di Re, the front seat passenger in the

car, in the driver’s transfer of counterfeit ration coupons to

the informant, and the transfer of the paper ration coupons

did not in and of itself suggest criminal activity. By contrast,

-—~ ©

om 2 ee a ee

5

in this case five baggies of cocaine were stashed behind an

upright armrest in the back seat of the car, within reach of all

of the occupants of the car, but all three occupants denied

ownership of the drugs. The not-so-innocent-looking drugs

in the passenger compartment and the claim by all occupants

of the car that they were not the owners of the drugs easily

differentiate this case from Di Re. Additionally, any

implication in Di Re that police generally are unjustified in

inferring a common purpose among occupants of a private

passenger car has been severely eroded, if not outright

eliminated, by this Court's reasoning in Wyoming v

Houghton, 526 U.S. at 304-05, and Ulster County, 442 US.

at 163-65. The Maryland court’s decision should be

reversed.

ARGUMENT

The Police Officers Here Had Probable Cause To Believe

that All Of The Car’s Occupants, Including Respondent

Pringle, Possessed Drugs, So The Warrantless

’ A

Pringle Was Valid. —

The court below misapplied this Court’s

when the Maryland court held that there was a rer sn

cause tO support the arrest of Pringle where he had not

admitted ownership of the drugs found in the car, was not the

owner of the vehicle but was “merely the front seat

passenger,” and the only evidence supporting the arrest was a

sum of money in the closed glove compartment and drugs

behind the armrest in the back seat of the car. Pet. App. at a

23a. Although the Maryland court acknowledged that :

finding of probable cause requires less evidence than is

necessary to sustain a conviction,” Pet. App. at 7a, 8a, that

court nevertheless looked to sufficiency-of-the-evidence

cases as establishing the law for determining possession, even

at the probable cause to arrest stage. Pet. App. at 8a-9a, | 7a.

6

Perhaps more importantly, the Maryland court

erroneously demanded “additional facts” tending to “establish

[Pringle’s] knowledge and dominion or control over the

drugs,” Pet. App. at 21a, concluding that the drugs in the

back seat and the roll of cash in the front glove compartment

were insufficient to establish probable cause to arrest Pringle.

In so doing, the Maryland court improperly gave short shrift

to the fact that none of the three occupants in the confined

space of the car acknowledged ownership of the drugs, which

provided probable cause to believe that a crime—possession

of cocaine—was committed in the presence of the officers by

at least one, and perhaps all three, of the car's occupants.

Contrary to the implication of the Maryland court’s ruling,

this Court’s precedent on probable cause did not require the

officers—faced with a situation where a crime has been

committed in the officers’ presence by at least one of the

occupants of a private passenger car—to simply walk away.

This Court’s standard for probable cause permitted .

the arrest of Pringle and the other occupants of the car in this

case. Because Pringle’s arrest without a warrant comported

with the Fourth Amendment, the lower comrt’s contrary

decision should be reversed.

I. Because Probable Cause To Arrest Does Not

Require Proof Sufficient To Sustain A Conviction,

There Is Probable Cause To Arrest All Three

Occupants Of A Car In Which Drugs Are Found

In The Passenger Compartment.

While the Maryland court apparently would not

quibble with the proposition that the drugs found behind the

back armrest of the car in which Pringle and his companions

were traveling provided probable cause to believe that “...an

offense has been or [was] being committed” in the officer's

presence, Draper v. United States, 358 U.S. at 313, citing

Carroll v. United States, 267 U.S. at 162, Pet. App. at 18a,

the Maryland court decided that the police did not have

7

probable cause to arrest Pringle, the front seat passenger, for

drug possession. Because the other two occupants of the car

were released after Pringle confessed, the Maryland court had

no occasion to decide whether any of the three in the car

could be properly arrested, but that court’s reasoning makes it

doubtful that any arrests could have been made consistent

with that court’s view of the law.

Whether single or multiple suspects are involved,

probable cause to arrest does not require proof sufficient to

establish guilt, Brinegar v. United States, 338 U.S. at 173, but

instead requires an evaluation of the totality of the

circumstances to determine whether there is a “probability or

substantial chance of criminal activity, not an actual showing

of such activity.” Jilinois v. Gates, 462 U.S. at 243 n. 13.

Because probable cause requires “only the probability, not a

prima facie showing of criminal activity,” //linois v. Gates,

462 U.S. at 235, this Court’s cases do not require that police

narrow a list of_likely suspects for a crime down to one in

order to make an arrest.

In Chambers v. Maroney, 399 U.S. 42, 44-47 (1970),

for example, the Court concluded that there was probable

cause to arrest all four occupants of a car seen circling a gas

station and then speeding away, even when the robbery was

committed by two men. Thus, the automobile context differs

from, for example, the scenario in Ybarra v. Illinois, 444 U.S.

85, which held that a search warrant for a tavern and the

tavern owner for evidence of possession of a controlled

' The English common law similarly required some basis for

Suspecting a particular individual but did not require that one

individual be singled out from all other possible suspects.

See Grano, “Probable Cause and Common Sense: a Reply to

the Critics of Illinois v. Gates,” 17 Journal of Law Reform

465, 480-81 (1984), citing 1 M. Hale, The History of the

Pleas of the Crown 580, 582-83, 588 (1736) and 2 M. Hale,

supra, 78-79, 80-90, 91, 101, 103, 113, 150.

8

substance did not justify the search of the tavern’s patrons

and the consequent discovery of heroin in a packet in a

patron’s (Ybarra’s) pants pocket. 444 U.S. at 90-91.

Searching everyone in a restaurant, bar, or even a public bus

or other common carrier is a far cry from the arrest of three

occupants of a private passenger car for possession of drugs

found in the back seat.

In contrast to the unreasonable result reached by the

Maryland court in this case, the Model Code of Pre-

Arraignment Procedure, Section 120.1 commentary, at 295

(Official Draft 1975), illustrates the correct view of probable

cause to arrest in a multiple-suspect situation, The Model

Code commentary concludes that an- officer could properly

arrest two persons present at the scene of a murder, found

standing over the dead body, on the basis that the officer has

a reasonable basis to believe that either of the two of them

killed the dead man. /d., citing Restatement of Torts

(Second), Section 119, illustration 2 (1965). Accord, 2

LaFave, Search and Seizure Section 3.2(e), at 64 (3d Ed.

1996). The Maryland court’s approach to the multiple-

suspect situation in this case would invalidate the arrests of

the two murder suspects in the Model Code’s illustration.

Under the Maryland court’s ruling in this case, it is

questionable whether any of the three occupants of the car in

which Pringle was traveling could be lawfully arrested for

possession of the drugs, despite the “substantial chance”,

Illinois v. Gates, 462 U.S. at 243 n. 13, that each was

involved in the criminal possession of cocaine. The

Maryland decision below effectively requires police officers

in the field to analyze probable cause in multiple suspect

situations under the standard that a “legal technician” such as

a prosecutor would use, cf. Brinegar v. United States, 338

U.S. at 175, with the likely result of less effective crime

prevention and prosecution. Contrary to the Maryland court’s

decision, where it is evident that a crime has been committed

9

and at least one of the occupants of the car is the wrongdoer,

probable cause exists to arrest all three of the occupants of

the car.

Il. Probable Cause Is Supported Here By The

Judgment That Passengers In A Private Car Are

Often Engaged In A Common Enterprise With

The Driver, And By The Principle That Occupants

Of A Car Jointly And Constructively Possess

Contraband Kept In The Passenger

Compartment.

Concluding that discovery of cocaine in the back

armrest of the car was insufficient to establish probable cause

for a front seat passenger's arrest, the court below required

“additional facts ... that would tend to establish [Pringle’s]

knowledge and dominion or control over the drugs”, Pet.

App. at 2la, to justify Pringle’s arrest. In doing so, the

Maryland court failed to recognize at least two important

factors that a reasonable officer’s assessment of probable

cause to arrest legitimately includes: (1) the commonsense

conclusion that car passengers will be engaged in a common

enterprise with the driver, Wyoming v. Houghton, 526 U.S. at

304-05, and will often have a shared interest in concealing

evidence of wrongdoing; and (2) the reasonable judgment

that drugs kept behind an armrest in the passenger

compartment of a car are within the dominion and control of

all occupants of the car, providing probable cause to arrest all

of the occupants for joint and constructive possession of the

contraband.

In Wyoming v. Houghton, this Court upheld the search

of containers in a passenger’s purse found in the back seat of

a lawfully stopped car where the officers had probable cause

to believe the car contained contraband. The Court observed

that a car passenger, unlike an “unwitting tavern patron”

where a search warrant is executed, cf. Ybarra v. Illinois, 444

U.S. 85, “will often be engaged in a common enterprise with

10

the driver, and have the same interest in concealing the fruits

or the evidence of their wrongdoing.” 526 U.S. at 304-05,

citing Maryland v. Wilson, 519 U.S. at 413-14 (permitting

police to order the passengers, as well as the driver, out of a

lawfully stopped vehicle to prevent harm to the officer by

passengers).

Other decisions of this Court recognize the validity of

this straightforward observation. In Ulster County, 442 U.S.

140, this Court rejected a Due Process clause challenge to the

application of a statutory presumption that the presence in an

automobile of any firearm is evidence of its possession by all

persons occupying the automobile at the time the item is

found. The Court thus upheld the convictions of the car’s

adult occupants—in a case where two loaded handguns were

found protruding from the (juvenile) front seat passenger's

handbag and all four occupants of the car were convicted of

possession of the firearms. /d.; cf. Chambers v. Maroney,

399 U.S. at 44-47 (finding probable cause to arrest all four

occupants of a car seen circling a gas station and then

speeding away, even when the robbery was committed by two

men). And in Carroll v. United States, 267 U.S. at 160-61,

the Court confirmed that there was probable cause to stop and

search a car for contraband liquor where the two occupants

were in the same vehicle as when they previously tried to sell

whiskey to the officers.

The presence of evident contraband such as drugs or

illegal weapons in the passenger compartment of a car

strengthens the inference that passengers in the car are

traveling together for a common purpose or are engaged in a

common activity with the driver. In Ulster County, 442 U.S.

at 163-65, for example, the Court concluded that it was not

unreasonable for the jury to infer that when the car was

stopped for speeding, the three other occupants of the car

anticipated the risk of a search and attempted to conceal the

guns in the female defendant's purse on the front seat. And it

is an unsurprising proposition that those engaging in serious

criminal activity rarely invite innocent bystanders to

accompany them. See, e.g., Ulster County, 442 U.S. at 165,

n.27 (citing Interim Report of Temporary State Commission

to Evaluate the Drug Laws, N.Y. Leg. Doc. No. 10, p. 69

(1972)) (“We do not believe that persons transporting

dealership quantities of contraband [in a car] are likely to go

driving about with innocent friends or that they are likely to

pick up strangers.”) Accord, United States v. Martinez-

Molina, 64 F.3d 719, 729 (1st Cir. 1995) (“We do not think

that officers in the field are required to divorce themselves

from reality or ignore the fact that ‘criminals rarely welcome

innocent persons as witnesses to serious crimes and rarely

seek to perpetrate felonies before larger-than-necessary

audiences.’”) (citation omitted). If “legislative judgments

such as [the one embodied in the statute in the Ulster County

case] deserve respect” in assessing the constitutionality of

statutory evidentiary presumptions, 442 U.S. at 165, n. 27,

then certainly police officers may rely upon similar

judgments in determining whether there is probable cause to

arrest occupants of a car in which drugs are found.

As this Court recognized in Wyoming v. Houghton,

526 U.S. at 304-05, an inference of “common enterprise”

among a car’s driver and passengers does not apply to

persons frequenting a public tavern or restaurant where a

search warrant is executed. Nor would it hold true for

passengers on a public bus or other common carrier, or a

movie theater. For this reason, the concern expressed by the

court below—that a ruling upholding Pringle’s arrest would

permit the police to place everyone in a bus or movie theater

under arrest until some person confessed to possession of the

contraband, Pet. App. at 21a, n.12—is not well-founded.

A police officer reasonably could infer “joint and

constructive possession” of the drugs found in the passenger

compartment of the car by all of the occupants of the car. See

Md. Code Ann. Crim. Law. Art., Section 5-101(u) (2002); cf.

National Safe Deposit Co. v. Stead, 232 U.S. 58, 67 (1914)

12

(noting that actual possession and constructive possession

may “shade into one another”); United States v. Martinez,

588 F.2d 495, 498 (Sth Cir. 1979) (constructive possession

requires the ability to reduce an object to actual possession).

An officer reasonably concludes that drugs in the passenger

compartment arc accessible to any occupant of a car, and

therefore that all of the occupants exercise “dominion or

control” over the drugs.

This Court confirmed the reasonableness of that

conclusion in Ulster County, 442 U.S. at 164-65, noting that

where guns were lying on the floor or seat of the car in plain

view of the other occupants of the car, “...it is surely

rational to infer that each of the respondents 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.”

This Court applied a similar principle in New York v. Belton,

453 U.S. at 460, permitting a police officer who made a

lawful custodial arrest of the occupant of the automobile to

search the passenger compartment of that automobile incident

to the arrest, and any open or closed containers in that

compartment. The Court in Belton based that rule in part on

“ the generalization that articles inside the relatively

narrow compass of the passenger compartment of an

automobile are in fact generally, even if not inevitably, within

“the area into which an arrestee [occupant] might reach in

order to grab a weapon or evidentiary [item].” 453 U.S. at

460, citing Chimel v. California, 395 U.S. 752, 763 (1969)

(permitting a search without a warrant of the area from within

which an arrestee might gain possession of a weapon or

destructible evidence). The Court's observation in Belton—

that items in the passenger compartment of a car generally are

within reach of an occupant of the car—underscores the

reasonableness of the police officers’ arrest of Pringle and his

companions for joint and constructive possession of the drugs

in the car.

13

To require, as the Maryland court did, further

evidence of “knowledge” of the drugs in the passenger

- compartment by one of the suspects at the probable-cause-to-

arrest stage, Pet. App. at 21a, where all of the car’s occupants

refused to respond to the officer’s questions about who

owned the drugs, could well preclude any arrest for

possession of illegal contraband in such a situation.

Reasonable inferences such as the ones that the police made

here regarding criminal possession of drugs by the occupants

of the car are not foreclosed at the probable-cause-to-arrest

Stage simply because the suspects refuse to talk to the officer

(or give him evasive or misleading answers). Cf. Wyoming v.

Houghton, 526 U.S. at 298 (defendant lied about

identification to avoid being found to be owner of drugs in

her purse).

The Maryland court’s ruling below undercuts the

practical, commonsense conclusions that police officers in

multiple suspect cases such as this one reasonably make. See,

e.g., United States v. Buckner, 179 F.3d at 838-39 (probable

cause to arrest both occupants of car in which drugs were

found); Fernandez v. Perez, 937 F.2d at 370 (probable cause

to arrest all three occupants of car because absent explanation

to the contrary, the metal-piercing bullets found in the car

were the property of one, two or all three of the occupants);

Braxton v. State, 350 So.2d 753 (Ala. 1977) (probable cause

to arrest passenger when gun found hidden in close

proximity); Smith v. State, 363 So. 2d 21 (Fla. 1978)

(probable cause to arrest passenger when drugs found on seat

between passenger and driver); People v. Zeller, 51 Ill. App.

3d 935, 367 N.E.2d 488 (1977) (probable cause to arrest rear

seat passenger when open containers of alcohol found in front

seat); State v. Horton, 625 N.W.2d 362 (lowa), cert. denied,

534 U.S. 928 (2001) (probable cause to arrest both occupants

of car for possession of marijuana); State v. Hanson, 588

N.W. 2d 885 (S.D.), cert. denied, 528 U.S. 835 (1999)

(probable cause to arrest front seat passenger for possession

of marijuana based on marijuana leaf and seed and pipe with

14

marijuana residue found in back seat of car); State v.

Mitchell, 482 N.W.2d 364, 368-69 (Wisc. 1992) (an officer

had probable cause to arrest both occupants of a vehicle in

which the officer detected the presence of marijuana odor and

smoke); People v. Vermouth, 20 Cal. App. 3d 746, 98 Cal.

Rptr. 65, 71 (1971) (an officer properly arrested a car’s driver

and passenger where the circumstances suggested that both

were in possession of weapons and cash found in the

vehicle). The rule applied by the court below—which

seemingly would render illegal the arrests upheld in the cases

cited above—would significantly and adversely affect law

enforcement efforts throughout the country.

Ill. Probable Cause To Arrest All Of A Car’s

Occupants Exists When A Crime, Such As Drug

Possession, Has Been Committed Within the

Passenger Compartment Of A Car, And No

Evidence Limits The Suspects To Or« Individual.

Although the Maryland court majority in its ruling

below cited one of this Court’s cases, United States v. Di Re,

332 U.S. 581, in holding that the arrest of Pringle was

without probable cause, Pet. App. at 20a, that case in no way

compels the result that the Maryland court reached. While it

is true that in United States v. Di Re, the Court rejected the

argument that Di Re could be arrested simply because he was

present in a car in which the driver alone had just committed

an illegal transaction with an undercover informant, the facts

in that case are easily distinguishable from the facts before

the Court here.

In Di Re, a government informant told police that the

driver of the car in which he was traveling had given him the

counterfeit ration coupons, but the informant said nothing to

incriminate Di Re, who was the front seat passenger.

Additionally, transfer of the paper ration coupons did not in

and of itself connote criminal activity. 332 U.S. at 593. See

also Henry v. United States, 361 U.S. 98, 103 (1959)

15

(defendant’s riding in a car with person suspected of some

implication in some interstate shipments, stopping in an alley

and picking up packages, were all acts that were outwardly

innocent and did not establish probable cause to arrest

defendant for theft of interstate shipments). This Court

concluded that there was no probable cause to arrest Di Re,

given the evidence clearly implicating the driver (and the

government informant), but not Di Re, in the criminal

transaction.

Unlike Di Re, Pringle was not simply associating with

someone independently suspected of criminal activity, but

was an occupant, with two others, in the passenger

compartment of a car in which drugs and a roll of cash were

accessible to all of the car’s occupants. Cf. Sibron v. New

York, 392 U.S. 40, 62-63 (1968) (holding search of

defendant’s person illegal and not incident to lawful arrest,

where only information officer had about defendant was that

_ he had seen defendant talking to several known narcotics

addicts over a period of eight hours). In this case, five

baggies of cocaine were stashed behind an upright armrest in

the back seat of the car, within reach of all of the occupants

of the car, but all three occupants denied ownership of the

drugs. The not-so-innocent-looking drugs in the passenger

compartment, and the claim by all occupants of the car that

they were not the owners of the drugs, easily differentiate this

case from Di Re, as does the lack of any informant’s tip or

other information pointing to one particular suspect at the

scene of the crime, but no other.

In Di Re, this Court observed that “the argument that

one who accompanies a criminal to a crime rendezvous

cannot be assumed {o be a bystander, forceful enough in some

circumstances, is farfetched . . . where the alleged substantive

crime is one which does not necessarily involve any act

visibly criminal.” 332 U.S. at 593 (emphasis supplied).

Here, unlike in Di Re, the police officers’ inference that

Pringle and his companions jointly possessed the drugs

16

located in the passenger compartment of the car in which they

were traveling was indeed “forceful” and not “far-fetched.”

Reasonable police officers were entitled under this Court’s

probable cause cases to make that inference, and to arrest

Pringle and the other occupants of the car. Thus, Di Re is

fully distinguishable from this case.

Further, even if Di Re at one time may have implied

that police generally are unjustified in inferring a common

purpose among occupants of a private passenger car, such an

implication has been severely eroded, if not outright

eliminated, by this Court’s reasoning in Wyoming v.

Houghton, 526 U.S. at 304-05, and Ulster County, 442 U.S.

at 163-65. Passengers in a car on a public highway have a

reduced expectation of privacy, Wyoming v. Houghton, 526

U.S. at 303-04, as this Court recognized in upholding a

search of a passenger’s belongings when there is reason to

believe contraband or evidence of criminal wrongdoing is in

the car. Unlike a patron in a restaurant or bar, cf. Ybarra v.

Illinois, 444 U.S. 85, or a passenger on a common carrier,

passengers in a private car likely share some common

purpose in traveling with the driver. Wyoming v. Houghton,

526 U.S. at 304-05. And, if it is “entirely rational,” in the

context of a criminal trial, for a statutory presumption to

permit an inference of illegal possession of a gun in the car

by all the occupants, Ulster County, 442 U.S. at 163, then it

cannot be that police officers are foreclosed from relying

upon a similar inference in arresting for drug possession all

occupants of a car in which the drugs are found in the

passenger compartment.

For all of the foregoing reasons, neither Di Re nor the

Court’s other probable cause cases support the result reached

in this case by the Maryland court. The Maryland court’s

decision should be reversed.

For

the foregoing

17

CONCLUSION

reasons, the amici States

respectfully urge the Court to reverse the lower-court

decision.

May 23, 2003

Respectfully submitted,

JIM PETRO

Attorney General of Ohio

DOUGLAS R. COLE*

State Solicitor

*Counsel of Record

STEPHEN P. CARNEY

Senior Deputy Solicitor

DIANE RICHARDS BREY

Deputy Solicitor

M. SCOTT CRISS

Assistant Solicitor

30 East Broad Street, 17th FI.

Columbus, Ohio 43215

614-466-8980

614-466-5087 fax