Amicus Curiae Brief — Maryland v. Pringle

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Supreme Court, US

FILED

MAY 2 3 2003

No. 02-809 OFFICE OF THE CLERK

Jn the Supreme Court of the Gnited States

STATE OF MARYLAND, PETITIONER

JOSEPH JERMAINE PRINGLE

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

THEODORE B. OLSON

Solicitor General

Counsel of Record

MICHAEL CHERTOFF

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

SRI SRINIVASAN

Assistant to the Solicitor

General

DEBORAH WATSON

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether there is probable cause to arrest the occu-

pants of a car when drugs packaged for distribution and

a roll of cash are found in the passenger compartment

and no occupant acknowledges ownership of the drugs.

(I) .

TABLE OF CONTENTS

Interest of the United States ............cccsssssseserereseeneneennnees

Constitutional provisions invOlVed ...............00cereeeeeeneneeees

Probable cause exists to arrest the occupants of a

car when a quantity of drugs suitable for distribu-

tion and a roll of cash are found in the passenger

compartment and none of the passengers acknow-

ledges exclusive ownership of the contraband ..........

A. An officer can reasonably infer upon finding a

commercial quantity of drugs and a roll of cash

in a car that each of the passengers is involved

in the crime -

1. Passengers traveling together in met

mobile are frequently engaged in a common

enterprise, including when the circum-

stances involve crime -

2. Passengers in an automobile as a practical

steerer

matter are likely to be aware of the presence

of a commercial quantity of drugs in the

3. This Court’s decisions in Ybarra and DiRe

do not suggest that probable cause is lack-

ing in the circumstances of this case ..............

eeeeee

B. The approach of the Maryland Court of Appeals

gives inadequate weight to legitimate law en-

forcement interests

Conclusion

(IID)

oOo nw ES

S 8

TABLE OF AUTHORITIES

Cases:

Adams v. Williams, 407 U.S. 143 (1972) ... . 27

Brinegar v. United States, 338 U.S. 160 (1949) ...... 24, 27, 30

Chambers v. Maroney, 399 U.S. 42 (1970) .......... - 23

County Court of | ts er County v. Allen, 442 U.S. 140

———— . 6, 11, 12, 14, 15, 22, 28

Gerstein v. Pugh, 420 U.S. 108 (1975) .......ccccccccceseses covseee 12

Illinois v. Gates, 462 U.S. 213 (1983) 9, 12, 24, 27

Illinois v. Wardlow, 528 U.S. 119 (2000) - 12,23

Iowa v. Horton, 625 N.W.2d 362 (Iowa), cert. denied,

534 U.S. 928 (2001) - 27

Johnson v. United States, 333 U.S. 10 (1948) ................. 23

Ker v. California, 374 U.S. 23 (1963) 16

Maryland v. Wilson, 519 U.S. 408 (1997) 10

New York v. Belton, 453 U.S. 454 (1981) 17

Payton v. New York, 445 U.S. 573 (1980) 23

People v. Foster, 788 P.2d 825 (Colo. 1990) 15

Sibron v. New York, 392 U.S. 40 (1968) 19, 20

“Texas v. Brown, 460 U.S. 730 (1983) 12

United States v. Buchanan, 70 F.3d 818 (5th Cir.),

cert. denied, 517 U.S. 1114 (1996) 14

United States v. Burrell, 963 F.2d 976 (7th Cir.), cert.

denied, 506 U.S. 928 (1992) 14

United States v. Carranza, 289 F.3d 634 (9th Cir.),

cert. denied, 123 S. Ct. 572 (2002) 16

United States v. Di Re, 332 U.S. 581 (1948) 7, 18,

20, 21, 22

United States v. Gainey, 380 U.S. 63 (1965) 14

United States v. Garcia, 848 F.2d 48 (4th Cir.), cert.

denied, 488 U.S. 957 (1988) 16

United States v. Hernandez, 314 F.3d 430 (2002),

amended on other grounds, 322 F.3d 592 (9th Cir.

2003) 19

United States v. Hillison, 733 F.2d 692 (9th Cir.

1984) - 13

Cases—Continued: Page

United States v. Martinez-Molina, 64 F.3d 719

I hala tenihiteeciadihacein halter 13

United States v. Ortiz, 966 F.2d 707 (1st Cir. 1992),

cert. denied, 506 U.S. 1063 (1993) sndeessoreemneeneetn 14

United States v. Ross, 456 U.S. 798 (1982) ......ccccccccccccceeee 17

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

Wilson v. Arkansas, 514 U.S. 927 (1995) .ccccccccccccsee 17, 26

Wyoming Vv. Houghton, 526 U.S. 295 (1999) ............... passim

Ybarra v. Illinois, 444 U.S. 85 (1979) .....cccccccccccccceeeee 7, 18, 19

Constitution:

eee GD, US, BG cnsenenemmenmmeneneee 1,8, 10

Miscellaneous:

Interim Report of Temporary State Comm'n to

Evaluate Drug Laws, N.Y. Leg. Doc. No. 10 (1972) ...... 14

Wayne R. LaFave, Search & Seizure (3d ed. 1996):

Vol. 2 13, 24, 25, 27

Vol. 4 26

Model Code of Pre-Arraignment Procedure (1975) ........... 13,

24, 26, 27, 28

Restatement (First) Torts (1934) ~ 26

Restatement (Second) Torts (1965) 25, 26

In the Supreme Court of the Gnited States

No. 02-809

STATE OF MARYLAN D, PETITIONER

JOSEPH JERMAINE PRINGLE

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case presents the question whether there is

probable cause to arrest the occupants of a car when

drugs packaged for distribution and a roll of cash are

discovered in the passenger compartment and no occu-

pant acknowledges ownership of the drugs. The

resolution of that issue has substantial implications for

the enforcement of the federal narcotics laws. The

United States therefore has a significant interest in the

Court’s disposition of this case.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment of the United States Consti-

tution provides: “The right of the people to be secure in

their persons, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be violated,

(1)

and no Warrants shall issue, but upon probable cause

i ae.

STATEMENT

1. On August 7, 1999, at 3:16 a.m., Officer Jeffrey

Snyder of the Baltimore County Police Department

stopped a car after observing that it was speeding and

the driver was not wearing a seat belt. The car con-

tained three occupants: the car’s owner Donte Partlow,

who was driving; respondent Joseph Pringle, who was

in the front passenger seat; and Otis Smith, who was in

the rear seat. Officer Snyder asked Partlow for his

license and registration. When Partlow opened the

glove compartment to retrieve those documents, Offi-

cer Snyder noticed a substantial amount of cash rolled

into a bundle. After a computer check of the documents

revealed no outstanding violations, Officer Snyder di-

rected Partlow to exit the vehicle and issued him an

oral warning. Officer Snyder then asked Partlow

whether he had any drugs or weapons in the car. Part-

low replied that he did not. Pet. App. 2a-3a.

Officer Snyder next sought and received permission

from Partlow to search the vehicle. He began the

search after telling the remaining two passengers,

respondent and Smith, to exit the vehicle and wait

outside the car with Partlow. While examining the area

of the front seat, Officer Snyder retrieved the roll of

money, totaling $763, from the glove compartment.

Later, upon lowering the armrest in the rear seat,

Officer Snyder discovered five baggies of crack cocaine

that had been lodged between the upright armrest and

the seat. Pet. App. 3a-4a & n.2.

Officer Snyder separately questioned the three occu-

pants about the cocaine and money. He advised each of

them that they would all be arrested if no one acknowl-

edged ownership of the drugs. None of the occupants

gave Officer Snyder any information about the drugs or

money. All three then were arrested and transported

to the police station. Respondent Pringle, after waiving

his Miranda rights at the station, confessed that the

drugs and money belonged to him. He explained that

the three men were going to a party and that he

intended to sell the cocaine or exchange it for sex. He

also acknowledged that he had placed the drugs behind

the rear seat armrest, and stated that neither Partlow

nor Smith had known about the drugs. Partlow and

Smith were then released, and respondent was charged

with possession of cocaine and possession of cocaine

with intent to distribute it. Pet. App. 4a; 3/23/2000 Tr.

22-24.

2. a. Respondent moved before trial to suppress his

confession, arguing, inter alia, that his arrest was not

supported by probable cause and that his confession

was the tainted fruit of the unlawful arrest. Pet. App.

4a-5a. Following a hearing, the trial court denied re-

spondent’s motion. The court explained that the co-

caine was within respondent’s “reach in the way he was

seated,” and that the drugs “were not secreted” but

“were just basically placed back there and hidden by

the armrest,” apparently to “hide them * * * from the

police.” Jd. at 58a. The court also emphasized “the fact

that there was money in front.” Id. at 59a. The court

ruled that, because there was “money in front” and

“drugs in the back, both in arm’s reach” of respondent,

“the officer had probable cause to make the arrest as he

did.” Ibid.

b. At trial, a police detective who qualified as an

expert in controlled substances testified that the 0.7

grams of cocaine found in the car were intended for dis-

tribution. Pet. App. 53a-54a. He reached that conclu-

sion on the basis that the five baggies had been “pack- -

aged individually, which is the way they are usually

packaged for resale.” Jd. at 54a. The jury found re-

spondent guilty of possession of cocaine and possession

of cocaine with intent to distribute it. Jd. at 50a.

ce. The Court of Special Appeals of Maryland af-

firmed. Pet. App. 50a-77a. The court concluded that

the “circumstances were sufficient to constitute prob-

able cause to make an arrest” because “there were five

baggies behind an armrest in the back seat and a sub-

stantial amount of cash in the glove compartment

located in front of [respondent].” Jd. at 61a.

3. The Maryland Court of Appeals, by a 4 to 3 vote,

reversed respondent’s convictions. Pet. App. la-49a.

a. The majority reasoned that, “[iJn 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 warran- |

tless arrest of a particular individual for that specific

offense.” Pet. App. 21a. The elements of the drug pos-

session charges brought against respondent, the major-

ity explained, required establishing his “‘knowledge’ of

the [cocaine] and ‘dominion or control’ over the sub-

stance.” Ibid.

The majority ruled that, “[wJithout additional facts

available to the officer that would tend to establish

[respondent’s] knowledge and dominion or control over

the drugs, the mere finding of cocaine in the back

armrest when [respondent] was a front seat passenger

in a car being driven by its owner is insufficient to

establish probable cause for an arrest for possession.”

Pet. App. 21a. A contrary conclusion, in the majority’s

view, would mean that the discovery of drugs in “a bus

or other kind of vehicle, or even a place, i.e., movie

theater,” would allow the arrest of “everyone in such a

vehicle or place * * * until some person confessed to

being in possession of the contraband.” Jd. at 2la-22a

n.12. The majority attached no significance to the roll

of cash found in the glove compartment, reasoning that

“{mjoney, without more, is innocuous,” id. at 22a, and

observing that the money was not in plain view when in

the glove compartment, id. at 23a. For those reasons,

the majority held that the circumstances were “insuffi-

cient to establish probable cause for an arrest of a front

seat passenger, who is not the owner or person in con-

trol of the vehicle, for possession of the cocaine.” Jbid.'

b. The dissent believed that the facts apparent to

Officer Snyder “establishe[d] probable cause for the

arrest of each of the three individuals, including [re-

spondent)].” Pet. App. 38a. In the dissent’s view, a “po-

lice officer who discovers (at 3 a.m.) three passengers in

a vehicle which contained several baggies of cocaine in

the rear armrest and a large wad of money (arguably,

‘drug money’) in the front glove compartment could

reasonably believe that those persons were exercising

joint and constructive possession of the contraband in

the vehicle, were engaging in drug trafficking, or con-

spiring to engage in drug trafficking, thus establishing

probable cause for the arrest of each individual.” Jd. at

4la. The dissent further observed that, although there

was probable cause for an arrest, “[w]hether the State’s

Attorney can produce sufficient evidence to demon-

strate, beyond a reasonable doubt, actual or construc-

tive dominion or control over the narcotics and knowl-

edge therein to warrant a conviction is another question

! The majority further concluded that respondent’s confession

at the police station was the fruit of his unlawful arrest. Pet. App.

24a-34a. That issue is not before this Court.

—one that is properly left to the prosecutor, initially,

and the trier of fact, subsequently.” Jd. at 41a-42a.

SUMMARY OF ARGUMENT

An officer faced with the question whether there is

probable cause for an arrest must make a practical,

common-sense judgment whether there is a fair pro-

bability that the suspect has committed a crime. Practi-

cal and common-sense considerations compel the con-

clusion that there was probable cause to arrest respon-

dent in this case. First, when a group of persons ar-

ranges to meet and travel together by car, it is rea-

sonable to assume that the group is engaged in a com-

mon enterprise. That generalization applies equally

when the enterprise involves crime. In addition,

individuals involved in drug trafficking are unlikely to

carry out their crimes in the immediate company of

innocent bystanders, especially within the close con-

fines of an automobile.

This Court’s decisions support the inference that the

discovery of contraband in an automobile casts suspi-

cion on all of the vehicle’s passengers in the crime. In

Wyoming v. Houghton, 526 U.S. 295 (1999), the Court

held that an officer who has probable cause to search an

automobile may search containers owned by a passen-

ger. The Court based that conclusion on the recognition

that passengers will often be engaged in a joint en-

deavor with the driver. And in County Court of Ulster

County v. Allen, 442 U.S. 140 (1979), the Court held

that the presence of illegal handguns in the passenger

compartment of a car justified an inference that all of

the passengers were culpably involved with the

firearms.

In light of those holdings, Officer Snyder had prob-

able cause to arrest respondent in this case. The dis-

covery of a commercial quantity of cocaine and a roll of

cash in the passenger compartment suggested that the

passengers were jointly involved in drug trafficking.

Although respondent was seated in the front seat and

the drugs were found in the rear seat, both the cash and

the drugs were within his arm’s reach. Even if another

passenger had concealed the drugs in the rear seat, it

was reasonable to infer that the passenger acted in

furtherance of the occupants’ common interest in avoid-

ing apprehension. Finally, no facts apparent to Officer

Snyder at the scene negated the inference that the

passengers were jointly associated with the cocaine.

None of the passengers, for instance, acknowledged

exclusive ownership of the contraband, and none ex-

pressed surprise upon discovery of the drugs.

Neither Ybarra v. Illinois, 444 U.S. 85 (1979), nor

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

conclusion that probable cause was lacking in this case.

Unlike Ybarra, which involved a person who happened

to patronize a particular tavern at the time that the

tavern was searched for evidence of drug trafficking,

respondent’s presence in a car carrying a commercial

quantity of cocaine was the result of a consensual

arrangement among the passengers to meet and travel

together at that time. And while Di Re invalidated the

arrest of an automobile passenger who was in a car

when counterfeit ration coupons were found on the

person of another occupant, the continuing vitality of Di

Re is uncertain in light of later decisions clarifying that

a car’s passengers normally may be assumed to be

engaged in a joint enterprise with each other. In any

event, Di Re involved unique circumstances in which,

unlike here, there was specific reason to doubt the

passenger’s involvement.

The Maryland Court of Appeals gave inadequate

weight to the interest in effective law enforcement

when it held that there was no probable cause in this

case. The probable cause standard embodies a balance

of the societal interests in effectively enforcing the

criminal laws and in protecting innocent citizens from

unreasonable arrests. When a commercial quantity of

drugs is found in a car, it is clear that a crime has been

committed, and that some or all of the passengers are

the guilty parties. Concerns about unreasonable

arrests are limited in that situation, and the interest in

ensuring the arrest and prosecution of the actual

offenders is significant.

The Maryland Court of Appeals, however, required

Officer Snyder to weigh the evidence supporting each

of the specific elements of the offense of drug pos-

session before deciding to arrest respondent. Officers

at the scene are not expected to sort through the spe-

cific elements of uncharged offenses. Instead, they are

to make a non-technical and practical determination

whether the suspect is involved in criminal activity.

There was ample cause in this case for Officer Snyder

to conclude that respondent and the other two passen-

gers were engaged in crime.

ARGUMENT

PROBABLE CAUSE EXISTS TO ARREST THE

OCCUPANTS OF A CAR WHEN A QUANTITY OF

DRUGS SUITABLE FOR DISTRIBUTION AND A ROLL

OF CASH ARE FOUND IN THE PASSENGER COM-

PARTMENT AND NONE OF THE PASSENGERS

ACKNOWLEDGES EXCLUSIVE OWNERSHIP OF THE

CONTRABAND

The warrantless arrest of an individual in a public

place is consistent with the Fourth Amendment if sup-

Die sy ray

a ee)

ported by probable cause. United States v. Watson, 423

U.S. 411 (1976). Under the “practical, common-sense

judgment called for in making a probable-cause deter-

mination,” /llinois v. Gates, 462 U.S. 213, 244 (1983), the

discovery of a commercial quantity of cocaine and a

bundle of cash in the passenger compartment of an

automobile affords probable cause for arresting each of

the occupants. There exists a “fair probability” or “sub-

stantial chance” of each passenger’s association with

the drugs in those circumstances, which suffices to

establish probable cause for an arrest under this

Court’s decisions. Jd. at 238, 243-244 n.13, 246.

A. An Officer Can Reasonably Infer Upon Finding A Com-

mercial Quantity Of Drugs And A Roll Of Cash In A

Car That Each Of The Passengers Is Involved In The

Crime

“Perhaps the central teaching of [this Court’s] deci-

sions bearing on the probable-cause standard is that it

is a practical, nontechnical conception” that deals in

“common-sense conclusions about human behavior.”

Gates, 462 U.S. at 231 (internal quotation marks and

citations omitted). Common sense dictates that, when

drugs packaged for distribution and a roll of cash are

found in an automobile, the partners in travel may well

be partners in crime. And the practical implications of

possessing a commercial quantity of drugs in the pas-

senger compartment of a car support an inference that,

absent affirmative indication to the contrary, the

passengers are jointly involved in the illegality.

1. Passengers traveling together in an automobile

are frequently engaged in a common enterprise,

including when the circumstances involve crime

When individuals arrange to meet and travel to-

gether in a private car, it is fair to assume that their

travel is in furtherance of a common objective or de-

sign, whether of a lawful or unlawful nature. Accord-

ingly, an officer who discovers evidence of illegal activ-

ity in a car usually can reasonably infer that all of the

vehicle’s occupants are culpable.

That common-sense proposition runs through this

Court’s decisions. In Maryland v. Wilson, 519 U.S. 408

(1997), for instance, the Court held that a police officer’s

settled authority to order the driver out of the car when

conducting a traffic stop extends as well to the remain-

ing passengers. The officer’s authority, the Court

explained, is designed to reduce “the possibility of a

violent encounter” stemming from efforts to prevent

the officer from uncovering “evidence of a more serious

crime.” Jd. at 414. “(T]he motivation of a passenger to

employ violence to prevent apprehension of [that] crime

is every bit as great as that of the driver,” ibid., the

Court held, reflecting the natural assumption that the

car’s occupants would be jointly involved with the

driver in committing the crime.

The Court’s decision in Wyoming v. Houghton, 526

U.S. 295 (1999), is to the same effect. Houghton holds

that the presence of probable cause to search an auto-

mobile for contraband extends not only to containers in

the car owned by the driver, but also to containers be-

longing to a passenger. In rejecting the suggestion that

the Fourth Amendment draws a distinction between

the driver’s belongings and those of passengers, the

Court reasoned that “a car passenger * * * 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.” Jd. at 304-305. A

passenger’s “presence in the car with the driver,” the

Court further observed, “provide[s] * * * reason to

believe that the two were in league.” /d. at 306.

The inference that the passengers are jointly associ-

ated with contraband found in the passenger compart-

ment played a key role in County Court of Ulster

County v. Allen, 442 U.S. 140 (1979). That decision

upheld the constitutionality of a statutory presumption

in New York law that allowed a jury to conclude from

the presence of a firearm in a car that all of the vehicle’s

occupants possessed the firearm.’ The case arose from

the discovery during a traffic stop of two handguns in

the purse of a front-seat passenger. The Court thought

it “entirely reasonable” for the jury to have assumed

that the handguns were not in the sole possession of the

passenger, noting that she was 16 years old, that the

handguns were too large to be fully concealed in her

purse, that the purse was open, that one of the guns

was in plain view and within “easy access” of the driver

and the two rear seat passengers, and that the other

passengers may have attempted to conceal the guns in

her purse in reaction to the traffic stop. Jd. at 163-164.

The Court thus viewed the case as “tantamount to one

in which the guns were lying on the floor or the seat of

the car in the plain view of the three other occupants.”

Id. at 164.

In such circumstances, the Court held, “it is surely

rational to infer that each of the [passengers] was fully

2 The presumption did not apply if the firearm was found on the

person of one of the passengers. 442 U.S. at 142-143 n.1.

aware of the presence of the guns and had both the

ability and the intent to exercise dominion and control

over the weapons.” 442 U.S. at 164-165. The Court

went on to rule that the evidence concerning the pres-

ence and location of the firearms in the car established

“more likely than not” that all of the occupants were in

possession of the handguns. /d. at 165.’ If the presence

of the handguns in the car in the circumstances of Allen

demonstrates “more likely than not” that all of the pas-

sengers possessed the firearms, the discovery of a com-

mercial amount of drugs in a car necessarily establishes

the existence of probable cause to arrest the occupants.*

3 In fact, the Court appeared to assume the validity of a parallel

New York provision addressing illegal drugs under which all pas-

sengers were presumed “culpably involved” when a commercial

quantity of drugs was found in a car. 442 U.S. at 165 n.27.

4 While the Court has eschewed defining probable cause by

reference to a “general, numerically precise degree of certainty,”

Gates, 462 U.S. at 235, the Court has indicated that probable cause

entails a lesser showing than preponderance of the evidence. See

Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (explaining that the

“reasonable suspicion” standard for Terry stops “is a less de-

manding standard than probable cause and requires a showing

considerably less than preponderance of the evidence”); Gates, 462

U.S. at 235 (observing that “(flinely-tuned standards such as proof

beyond a reasonable doubt or by a preponderance of the evidence,

useful in formal trials, have no place” in probable cause analysis,

and that no “prima facie showing” is required to establish probable

cause); Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality opinion)

(explaining that probable cause “does not demand any showing

that [the officer’s belief] be correct or more likely true than false”);

Gerstein v. Pugh, 420 U.S. 103, 121 (1975) (noting that probable

cause “does not require the fine resolution of conflicting evidence

that a reasonable-doubt or even a preponderance standard de-

mands”). See generally Model Code of Pre-Arraignment Proce-

dure § 120.1 cmt., at 294-296 (1975) (rejecting as too strict a more-

eS ee

2. Passengers in an automobile as a practical

matter are likely to be aware of the presence of a

commercial quantity of drugs in the vehicle

The discovery of narcotics and a roll of cash in a car

affords reasonable grounds for suspecting the involve-

ment of all of the passengers not only because they are

fairly assumed to be “engaged in a common enterprise,”

Houghton, 526 U.S. at 304, but also because, for various

practical reasons, the circumstances are particularly

suggestive of joint criminality. The propriety of infer-

ring that an individual in the company of persons

engaged in crime is a confederate in their unlawful

conduct turns on “whether the known criminal activity

was contemporaneous with the association and whether

the circumstances suggest that the criminal activity

could have been carried on without the knowledge of all

persons present.” United States v. Martinez-Molina,

64 F.3d 719, 727 (1st Cir. 1995); accord United States v.

Hillison, 733 F.2d 692, 697 (9th Cir. 1988). See gen-

erally 2 Wayne R. LaFave, Search & Seizure § 3.6(c), at

309-310 (3d ed. 1996). The occupants of a car in which a

merchantable quantity of narcotics is discovered were

present during the illegality, and they are likely to have

known about, and thus to be associated with, the crime.

a. Asa general rule, “criminals rarely welcome inno-

cent persons as witnesses to serious crimes and rarely

seek to perpetrate felonies before larger-than-neces-

sary audiences.” United States v. Ortiz, 966 F.2d 707,

probable-than-not standard for warrantless arrests). The term

“probable” in the probable cause standard does not suggest a

preponderance test: that word “in an earlier time meant that

which was capable of being proved or worthy of belief, and was not

linked to more recent notions of probabilities measured mathe-

matically.” Jd. at 292-293.

712 (1st Cir. 1992), cert. denied, 506 U.S. 1063 (1993).

Cf. United States v. Gainey, 380 U.S. 63, 67-68 (1965)

(“folklore teaches” that “strangers to the * * * busi-

ness” of manufacturing illegal liquor “rarely penetrate

the curtain of secrecy”). Those involved in the drug

trade thus ordinarily would not carry out their crimes

in the company of unknowing third parties. See United

States v. Burrell, 963 F.2d 976, 988 (7th Cir.) (noting

unlikelihood that “drug traffickers * * * discuss or

deliver large quantities of drugs in the presence of

innocent bystanders”), cert. denied, 506 U.S. 928 (1992).

That is especially the case within the close quarters of

the passenger compartment of an automobile, in which

any display or handling of an amount of drugs suitable

for distribution would likely come to the attention of

the other passengers.°

In addition, unlike the case with other fruits or evi-

dence of crime, the presence of drugs necessarily be-

trays criminal activity. A fellow passenger exposed to

stolen merchandise or counterfeit currency may have

no reason to suspect any illegality. The discovery of

such evidence in a car therefore does not necessarily

5 In Allen, for instance, this Court recited with apparent ap-

proval New York’s justification for presuming the culpability of all

of the passengers when a commercial quantity of drugs is found in

a car: “We do not believe that persons transporting dealership

quantities of contraband are likely to go driving about with inno-

cent friends or that they are likely to pick up strangers.” 442 US.

at 165-166 n.27 (quoting Interim Report of Temporary State

Comm'n to Evaluate Drug Laws, N.Y. Leg. Doc. No. 10, at 69

(1972)); see United States v. Buchanan, 70 F.3d 818, 832 (5th Cir.)

(noting testimony that an individual transporting a substantial

quantity of narcotics “would not allow a complete outsider to ride

in the car”), cert. denied, 517 U.S. 1114 (1996).

on ll

implicate all of the passengers. See, e.g., People v.

Foster, 788 P.2d 825, 829 (Colo. 1990) (finding no

probable cause to arrest a passenger in a pickup truck

carrying a motorcycle that had been stolen months

beforehand). By contrast, the presence of drugs—

without more—immediately reveals criminal activity.

As a result, persons carrying narcotics for distribution

are unlikely to travel in a car with individuals who are

unaware of the crime; and conversely, individuals who

travel in a car containing a commercial quantity of

drugs are likely to know about the contraband. Even 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.°

For those reasons, the discovery of an amount of

narcotics suitable for distribution in the passenger

compartment supports an inference that all of the car’s

occupants were aware of, and hence involved with, the

drugs. See Allen, 442 U.S. at 164-165 (presuming that

passengers were “fully aware” of guns contained in

purse in front seat “and had both the ability and the in-

tent to exercise dominion and control over the wea-

pons”); United States v. Carranza, 289 F.3d 634, 641

(9th Cir.) (“a passenger’s presence in a vehicle carrying

a commercial quantity of drugs across the border is

® If the narcotics are found concealed on the person of an occu-

pant or in a locked and stowed compartment only accessible to the

driver, there may be less reason to infer that all passengers were

aware of the existence of the contraband. But see Houghton, 526

U.S. at 298, 300 (assuming that discovery of a syringe used to take

drugs on the driver’s person conferred probable cause to search

the entire car, including a purse belonging to a passenger).

enough to find probable cause”), cert. denied, 123 S. Ct.

572 (2002); United States v. Garcia, 848 F.2d 58, 60 (4th

Cir.) (permissible to infer awareness of drugs possessed

by companion when amount is fit for distribution), cert.

denied, 488 U.S. 957 (1988). Cf. Ker v. California, 374

U.S. 23, 36-37 (1963) (plurality opinion) (probable cause

to arrest individual who “had been using his apartment

as a base of operations for his narcotics activities” also

establishes probable cause to arrest his wife, who was

present in the apartment, on ground that “she was in

joint possession with her husband”). .

b. The facts of this case are illustrative. When

Officer Snyder found five baggies of cocaine and a roll

of money in the passenger compartment, he could rea-

sonably conclude that the occupants were engaged in

the distribution of cocaine. The bundle of cash sug-

gested that some drugs had already beer sold, and the

cocaine packaged for distribution indicaw. that addi-

tional sales were yet to be completed. While “[mJoney,

without more,” may be “innocuous,” Pet. App. 22a, the

presence of cocaine packaged for sale together with the

~easiris indicative of drug trafficking.’

Even if those circumstances would not establish

adequate cause for concluding that the passengers were

then engaged in drug sales, Officer Snyder still could

reasonably conclude that respondent and the other

occupants were aware of (and associated with) the co-

caine in the vehicle. First, although the Maryland

Court of Appeals emphasized that respondent sat in the

7 Also, the lateness of the hour at the time of the traffic stop

(3:16 a.m.) could contribute to an inference that the passengers

were engaged in illegal drug trafficking. See 4 LaFave, supra,

§ 9.4(d), at 162-164.

—

—_

front seat rather than the rear seat where the cocaine

was found, Pet. App. 21a-28a, the drugs were within his

(and the other occupants’) reach, see id. at 79a. Indeed,

the rule of New York v. Belton, 453 U.S. 454 (1981), per-

mitting the search of the passenger compartment inci-

dent to the arrest of an occupant, rests on the assump-

tion that the entire passenger compartment is’ within

the immediate reach of any passenger. See id. at 460.

At any rate, even if another passenger in fact con-

cealed the cocaine behind the rear seat armrest, the

inference would remain that he did so with the aware-

ness of the other occupants and in furtherance of their

common interest in avoiding apprehension. See Hough-

ton, 526 U.S. at 304-305; Wilson, 519 U.S. at 413-414.

The discovery of the money and drugs in separate

locations in the car might have bolstered that inference,

indicating to Officer Snyder that the various passen-

gers were working together. And the discovery of the

drugs behind the armrest rather than in a more

secreted location suggested that the cocaine had been

in plain view of the passengers but was hastily lodged

between the armrest and the seat during the traffic

stop. Even if the cocaine might have been placed

there previously, the apparent lack of concern that the

other passengers would readily discover the contraband

points toward their association with the drugs. See

United States v. Ross, 456 U.S. 798, 820 (1982) (“by

their very nature [contraband] goods must be withheld

from public view”).

Consequently, the circumstances apparent to Officer

Snyder at the scene, when considered through the lens

of common-sense assumptions about the presence of

narcotics in the passenger compartment of a car, af-

forded him ample cause for suspecting respondent and

the other passengers of culpability in connection with

the cocaine. The contrary conclusion of the Maryland

Court of Appeals cannot be squared with the practical

and non-technical inquiry demanded by the probable

cause standard.

3. This Court’s decisions in Ybarra and Di Re do not

suggest that probable cause is lacking in the

circumstances of this case

Respondent relies principally (Br. in Opp. 4-8) on this

Court’s opinions in Ybarra v. Illinois, 444 U.S. 85

(1979), and United States v. Di Re, 332 U.S. 581 (1948).

Neither of those decisions is at odds with a finding of

probable cause in the circumstances of this case.

a. In Ybarra, the Court held that officers executing

a warrant to search a particular tavern and its bar-

tender for evidence of heroin trafficking did not have

probable cause to search one of the tavern’s patrons.

444 U.S. at 90-92. The Court explained that, although

“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,” a “persoa’s

mere propinquity to others independently suspected of

criminal activity does not, without more, give rise to

probable cause to search that person.” Jd. at 91. The

search of an individual “must be supported by probable

cause particularized with respect to that person,” the

Court reasoned, and that condition is not met when

“eoincidentally there exists probable cause to search or

seize another or to search the premises where the

person may happen to be.” /bid.

The tavern in Ybarra is unlike the Bar in this case.

Although Ybarra “happened to be” at the tavern during

execution of the search warrant, there was no reason to

suppose that his physical proximity to the suspected

crime was anything more than “coincidental[].” 444

BEST AVAILABLE COPY |

U.S. at 91. There was no basis for inferring that he had

taken part in, or even was aware of, the sale of heroin at

the tavern. The passengers in a private car, by

contrast, presumably know ore another and have

arranged to meet and travel together at a particular

time and by a particular route. This Court in Houghion

distinguished Ybarra on exactly that basis, observing

that car passengers, “unlike the unwitting tavern

patron in Ybarra,” are often “engaged in a common

enterprise with the driver.” 526 U.S. at 304. See

United States v. Hernandez, 314 F.3d 430, 435 (2002)

(“A car, unlike a tavern, is not open to the public. The

passenger in a car typically has a relationship with the

driver * * *.”), amended on other grounds, 322 F.3d

592 (9th Cir. 2003).

For the same reason, the Maryland Court of Appeals

was wrong to assume (Pet. App. 2la-22a n.12) that a

finding of probable cause in this case would compel the

conclusion that the discovery of contraband in a bus or

theater would justify the arrest of all who are present.

The random association between strangers who happen

contemporaneously to ride in the same public bus or to

patronize the same commercial establishment is akin to

the situation in Ybarra. That situation differs in kind

from the circumstances of this case.*

8 Sibron v. New York, 392 U.S. 40 (1968), which the Court cited

in Ybarra (444 U.S. at 91), is not pertinent to this case. In Sibron,

the Court ruled that there was no probable cause to arrest an

individual solely on the basis that he had conversations with

several drug addicts in the course of an eight-hour period. 392

U.S. at 62-63. The content of the conversations was not known,

and no materials had been passed between the parties. While it is

not reasonable to infer that persons who merely “talk to narcotic

addicts are engaged in the criminal traffic in narcotics,” id. at 62, in

b. This Court’s decision in Di Re, although over-

turning the arrest of an automobile passenger, does not

support the conclusion that probable cause was lacking

in this case. Di Re arose from a government informer’s

communication to an investigator of his plans to pur-

chase counterfeit gasoline ration coupons from an in-

dividual named Buttitta at a certain location. The

investigator followed Buttitta’s car to the appointed

location, and, on approaching the car, found the in-

former in the rear seat holding two gasoline ration cou-

pons later determined to be counterfeit. The informer

told the investigator that he had obtained the coupons

from Buttitta, who was in the driver’s seat. A third

individual, Di Re, was in the front passenger seat. The

investigator arrested all three, and a subsequent search

of Di Re at the police station uncovered counterfeit

coupons on his person. 332 U.S. at 583. This Court set

aside Di Re’s arrest, holding that the investigator

lacked probable cause to suspect Di Re’s involvement in

the sale of the counterfeit coupons to the informer. /d.

at 593-594.

That holding does not assist respondent in this case.

To begin with, Di Re was decided long before this

Court’s opinions in Houghton, Wilson, and Allen. As

explained (pp. 10-12, supra), those decisions have now

established that the discovery of contraband in the

passenger compartment of a car ordinarily justifies an

inference that the passengers are jointly culpable. It is

not clear that the Court would reach the same result in

Di Re after those subsequent decisions.

this case, there is no question that a crime was committed and

respondent was in the car with a commercial amount of cocaine.

a ee ema mm

In any event, the reasons identified by th

finding a lack of probable cause in Di Re ican

cation in the context of this case. The Court first ob-

served that, at the time of Di Re’s arrest, the investiga-

tor had no “information indicating that Di Re was in the

car when [the informer] obtained ration coupons from

Buttitta” or that Di Re “heard or took part in any

conversation on the subject.” 332 U.S. at 593. The

Court next explained that the crime of selling counter-

feit coupons “does not necessarily involve any act

visibly criminal.” Jbid. That is because, even if Di Re

had witnessed the passing of the papers to the in-

former, “it would not follow that he knew they were

ration coupons,” or, if he recognized them as such. that

he “would know them to be counterfeit.” bid. Finally

the Court ruled that any inference of Di Re’s involve-

ment based on his possibly witnessing the exchange

was erased when the informer, who had no evident rea-

son to avoid incriminating Di Re, “pointed out Buttitta

and Buttitta only, as a guilty party.” Jd. at 594.°

None of those considerations applies in the circum-

stances of this case. First, whereas there was no indica-

tion that Di Re was present in the car at the time of the

illegal transaction, 332 U.S. at 593, the passengers in an

automobile carrying narcotics were present in the car

contemporaneously with the unlawful possession

Second, whereas Di Re, even if a witness to the transfer

of the coupons, might well not have perceived any

° The government had not called the i

” Th informer as a witness in Di

s trial or shown that the informer was unavailable, leading the

ourt to “assume that [the informer’s] testimony would not have

been helpful in bringin ilty k ; .

U.S. at 593. ging guilty knowledge home to Di Re.” 332

illegality in the passing of seemingly innocuous papers,

the possession in a car of a commercial quantity of co-

caine “necessarily involve[s] an[] act visibly criminal to

passengers who observe it, ibid. Finally, the circum-

stances in Di Re presented an affirmative reason for

concluding that Di Re, despite his presence in the car,

was not involved in the illegal exchange: the informer,

who was a party to the offense and had no apparent

motive to color his description of it, fingered Buttitta

alone and made no mention of Di Re. Id. at 594. .

There may be a comparable reason in certain situa-

tions to suppose that a particular individual was un-

aware of the presence of narcotics in the passenger

compartment of a car—such as if the passenger were a

child or a hitchhiker, see Allen, 442 U.S. at 156 n.15,

163, or if the location of the contraband and other

contextual considerations made clear that it belonged

exclusively to a specific person, see note 6, supra. In

this case, however, there was no such basis for disre-

garding the inference that all three passengers were

aware of the cocaine. None of them, for instance, ac-

knowledged exclusive ownership of the drugs when

questioned by Officer Snyder during the traffic stop.

Nor did any of them express surprise at the discovery

of the drugs. And no fact apparent to Officer Snyder at

the scene suggested that only one passenger could have

been aware of (and involved with) the drugs. Con-

sequently, Officer Snyder, notwithstanding Di Re, had

probable cause to arrest respondent and the other

occupants.”

10 Johnson v. United States, 333 U.S. 10 (1948), does not suggest

otherwise. In Johnson, the Court assumed that officers lacked

probable cause to effect the warrantless arrest of an individual

B. The Approach Of The Maryland Court Of Appeals

Gives Inadequate Weight To Legitimate Law

Enforcement Interests

The “Fourth Amendment accepts [the] risk” that

“persons arrested and detained on probable cause to

believe they have committed a crime may turn out to be

innocent.” Illinois v. Wardlow, 528 U.S. 119, 126 (2000).

That is a necessary cost of ensuring the effective de-

tection and prosecution of crime. As this Court has

explained, “innocent behavior frequently will provide

the basis for a showing of probable cause; to require

otherwise would be to sub silentio impose a drastically

more rigorous definition of probable cause than the

security of our citizens[] demands.” Gates, 462 U.S. at

244 n.13.

The probable cause standard balances society’s inter-

est in affording law enforcement officers “fair leeway

when she answered the door to a hotel room in which the odor of

opium had been detected. Jd. at 15-17. The officers had no

knowledge at that time whether she was alone in the room or with

numerous other persons; and they evidently did not know whether

she was present in the room while opium was being smoked there,

or whether, if present, she was one of the persons smoking it. See

id. at 16. Here, respondent was known to be one of three pas-

sengers in an automobile at a time when a commercial amount of

cocaine was present in the passenger compartment. Moreover,

Johnson addressed whether there was probable cause for the

warrantless arrest of an individual following a nonconsensual entry

into her residence; and it is now settled that, regardless of pro-

bable cause, the police ordinarily must obtain a warrant before

making a nonconsensual entry into a residence to effect an arrest.

Payton v. New York, 445 U.S. 573 (1980). Cf. Chambers v.

Maroney, 399 U.S. 42, 52 (1970) (“for the purposes of the Fourth

Amendment there is a constitutional difference between houses

and cars”).

for enforcing the law in the community’s protection”

against the competing interest in protecting “citizens

from rash and unreasonable interferences with privacy

and from unfounded charges of crime.” Brinegar v.

United States, 338 U.S. 160, 176 (1949). The Maryland

Court of Appeals struck that balance in a manner that

“unduly hamper[s] law enforcement.” Jbid.

l. a. An officer faced with the discovery of a com-

mercial amount of cocaine in the passenger compart-

ment of a car knows that a crime has been committed

and knows to a near certainty that some or all of the

passengers are the guilty parties. The law enforcement

interest in permitting an arrest is especially strong in

that situation, and the competing concern with arrests

based on “whim or caprice” (Brinegar, 338 U.S. at 176)

is limited.

When there is no doubt that a crime has been com-

mitted, the interest in effective enforcement of the law

is pronounced. See Model Code of Pre-Arraignment

Procedure § 120.1 cmt., at 296 (1975) (Model Code) (“[I]t

is necessary to distinguish between cases where there

is substantial doubt about whether a crime has been

committed at all, and cases where the doubt relates to

the identity of the offender.”)." In the context of

11 See also 2 LaFave, supra, § 3.2(e), at 70 (explaining that there

“may be * * * a basis for being more demanding [in applying the

probable cause standard] with respect to the existence of criminal

activity than with respect to the identity of the perpetrator of a

known crime”). The application of the privilege of arrest at com-

mon law reflected such a distinction. Whereas the privilege was

unavailable to a private individual who made an arrest based on an

erroneous suspicion that a felony had been committed, it was avail-

able to an individual who was correct in believing that a felony had

~ ~~

ot 8 yen

narcotics trafficking, moreover, the crime is likely part

of a continuing pattern rather than an isolated incident,

magnifying the interest in facilitating arrest and

prosecution to prevent future offenses. |

As for the idencity of the parties responsible for the

drugs in the car, because the class of suspects consists

only of the current passengers and because of the vir-

tual certainty that some or all of them bear responsibil-

ity, the concern with protecting against unreasonable

arrests of innocent citizens is substantially mitigated.

See 2 LaFave, supra, § 3.2(e), at 68 (observing that the

“degree of certainty that the actual offender is within

the group” bears on probable cause); id. at 71 (ex-

plaining that “existence of known criminal activity,” as

opposed to uncertainty about whether a crime has

occurred, “serves to provide an anchor or touchstone, in

a time-space sense, which limits the police arrest

authority”). A particular passenger may ultimately

prove innocent of association with the drugs. But the

balance of interests favors allowing an arrest of the

vehicle’s occupants. See Houghton, 526 U.S. at 305

(“(Tjhe balancing of interests must be conducted with

an eye to the generality of cases.”).

b. When, as in this case, it is certain that a crime has

been committed and the group of legitimate suspects is

both small in number and likely to include the actual

offender, the probable cause standard would permit the

arrest of all of them even absent any inference that

more than one was involved—i.e., even if there is a

strong likelihood of the arrest of persons who in fact are

innocent. The interest in ensuring the ability to appre-

been committed but who arrested the wrong person. See 1 Re-

statement (Second) Torts § 119 cmt. h, at 196 (1965).

hend and prosecute the actual offender justifies multi-

ple arrests in that situation. See Model Code 295 (ex-

plaining that there is “good authority” for arresting

“two or more persons, not believed to be accomplices,

for “the same offense”). The Restatement of Torts

illustrates the point through an example:

A sees B and C bending over a dead man D. B and

C each accuse the other of murdering D. A is not

sure that either B or C did the killing, but he has a

reasonable suspicion that either B or C killed D. A is

privileged to arrest either or both.

1 Restatement (Torts) Second § 119 ill. 2, at 198 (1965);

see 4 LaFave, supra, § 9.4(b), at 150-151 (describing

“the classic case in which a man is shot in the back ina

locked room and the two persons present at the time

accuse each other,” and concluding that “it would seem

that both suspects might be arrested”). .

In this case, consequently, even if the circumstances

had led Officer Snyder to believe that one (and only

one) of the three passengers could have been associated

with the cocaine, he had probable cause to arrest all

three and to identify the guilty party through further

investigation: each of the three was within reach of the

drugs and the roll of cash, and no affirmative reason

existed to dismiss any of them as a suspect. Cf. Towa v.

Horton, 625 N.W.2d 362, 367 (lowa) (rejecting notion

that “probable cause is finite and, if it is expended on

12 The rule described in the Restatement is a longstanding one

in the common law. See 1 Restatement (First) Torts § 119, ill. 2, at

254 (1934) (invoking the same example). This Court frequently

relies on common law principles in determining the contours of the

Fourth Amendment. See, e.g., Houghton, 526 U.S. at 299-302; Wil-

son v. Arkansas, 514 US. 927, 931 (1995).

one suspect, there cannot be enough left for another

suspect”) (internal quotation marks and citation

omitted), cert. denied, 534 U.S. 928 (2001).

2. The approach of the Maryland Court of Appeals

requires too much of officers at the scene and leaves

them insufficient discretion to respond effectively to a

known crime.

a. To begin with, the court assumed that Officer

Snyder was required before making an arrest to weigh

the evidence supporting each element of the drug pos-

session charges ultimately brought against respondent.

See Pet. App. 8a, 21a. In the court’s view, the evidence

apparent to Officer Snyder of the elements of “knowl-

edge” and “dominion or control” did not suffice to jus-

tify an arrest. Jd. at 21a. That approach is inconsistent

with the admonition that the probable cause standard is

a “practical, nontechnical conception,” Brinegar, 338

U.S. at 176, that deals in the considerations of “reason-

able and prudent men, not legal technicians,” id. at 175.

Requiring police officers at the scene to sort through

the elements of uncharged offenses unduly impairs

their ability to take resolute action in the face of con-

crete evidence of crime. An officer deciding whether to

make a warrantless arrest frequently confronts an

uncertain and evolving situation. See Model Code 294.

The probable cause standard is a correspondingly “fluid

concept.” Gates, 462 U.S. at 232. Accordingly, an officer

need not identify a specific offense that he believes has

been committed before deciding to arrest, see Model

Code 296-297; 2 LaFave, supra, § 3.2(e), at 72, let alone

wrestle with the various elements of an offense. See

Adams v. Williams, 407 U.S. 143, 149 (1972) (“Probable

cause does not require the same type of specific

evidence of each element of the offense as would be

needed to support a conviction.”).

The responsibility for analyzing specific offense ele-

ments and weighing the evidence of particular crimes

lies principally with the prosecutor in arriving at a

charging decision and with the finder of fact in reaching

a determination on guilt. The purpose of an officer’s

antecedent decision to arrest “is to take the person into

custody so that the determination can be made whether

or not to charge the arrested person with crime.”

Model Code 294. In this case, respondent’s proximity

to the cocaine and the roll of money, coupled with

common-sense inferences about the situation, afforded

Officer Snyder ample cause for suspecting respondent’s

involvement in some capacity with the drugs.”

b. The approach of the Maryland Court of Appeals

disables officers from responding effectively to the

discovery of narcotics in an automobile. Both the court

(Pet. App. 2a, 21a, 23a) and respondent (Br. in Opp. 7-8)

appear to assume that officers could arrest the driver

or owner of the car as opposed to a “mere passenger.”

In many situations, however, the driver or owner may

not be the most obvious suspect. The emphasis on

those individuals stems from the belief that, because

they have a measure of control over the vehicle, they

may be more likely responsible for contraband secreted

within it. If the driver alone were associated with the

contraband, however—as is presumed by an approach

that would allow only his arrest but not that of a “mere

passenger”—one would expect the driver to conceal the

13 In any event, even with respect to the particular offense ele-

ments of knowledge and control, the location of the drugs and roll

of money within respondent's reach presented strong circumstan-

tial evidence that he was aware of the presence of the cocaine and

could exercise constructive control over it. See Allen, 442 U.S. at

164.

contraband in a location entirely inaccessible to the

other passengers (such as in a locked container in the

trunk), rather than to leave it in the passenger com-

partment subject to discovery by the other occupants.

For that reason, perhaps the least likely scenario when

drugs are found behind the rear seat armrest is that the

driver acted alone. .

Insofar as respondent or the Maryland Court of

Appeals would also allow the arrest of the passenger

seated closest to the contraband, that approach, too,

would be unsound. If only one person were in the car,

probable cause ordinarily would exist for his arrest if

drugs were found somewhere in the passenger com-

partment within his reach. It would make little sense

to preclude the arrest of that same person when drugs

are found in exactly the same location simply because

an additional passenger is seated more closely to the

contraband—especially given that the two may well be

jointly associated with the drugs. Moreover, an analy-

sis pinned on an individual’s relative distance from con-

traband would encourage the passenger with imme-

diate control over the drugs to deposit them in the

vicinity of another passenger in the event of a traffic

stop, thereby potentially insulating from arrest the

individual most clearly in control of the drugs. Cf.

Houghton, 526 U.S. at 305 (observing that a passenger

could surreptitiously hide contraband in another pas-

senger’s belongings).

Finally, insofar as respondent or the Maryland Court

of Appeals might mean to suggest that no one may be

arrested when officers are unable to determine with

confidence that any specific passenger was responsible

for the drugs, that conclusion could not be squared with

the common-sense inference that probably all—and

certainly some—of the passengers are associated with

the contraband. That approach would also give auto-

mobile passengers involved in drug trafficking a ready

recipe for mutually avoiding arrest. The better ap-

proach is to permit an officer to examine the totality of

circumstances and to arrest all of the passengers if the

situation warrants it. Although an innocent passenger

may be arrested in particular cases, the probable cause

standard presumes that “room must be allowed for

~—{such] mistakes.” Brinegar, 338 U.S. at 176. And when

that occurs, the arrests frequently, as in this case, will

facilitate further investigation that enables the officer

to conclude in short order that a particular passenger

should be released.

CONCLUSION

The judgment of the Court of Appeals of Maryland

should be reversed.

Respectfully submitted.