State v. Suddith ( 2004 )

Dissenting Opinion by

ELDRIDGE, J., which BELL, C.J., joins.

I disagree with the majority’s decision that the evidence was sufficient to convict the respondent, a passenger in the motor vehicle, of possessing the heroin, cocaine, and drug paraphernalia found in the vehicle. When the actual facts of this case are objectively examined, the majority’s decision amounts to a holding that the mere presence of contraband anyplace in a motor vehicle is sufficient to convict any passenger of knowingly possessing such contraband. This is contrary to our prior cases and, more importantly, violates the federal and state constitutions. Instead, I fully concur with Judge Greene’s holding for the Court of Special Appeals

“that the mere presence in a vehicle of drugs and paraphernalia, without more, is insufficient to establish a nexus between the passenger, the drugs, and the paraphernalia. Here, the evidence was not sufficient to permit a reasonable inference that appellant knew that the drugs and paraphernalia were in the vehicle or that appellant exercised any dominion or control over the drugs and paraphernalia.”

The majority’s decision that sufficient evidence supported the respondent’s convictions for knowingly possessing contraband is based upon an erroneous factual inference constructed by the majority. The majority finds that the jury “could, reasonably infer that it was inconceivable, given the quantity of contraband found inside the vehicle, that all of the contraband was concealed from respondent’s view before the vehicle flipped over three times.” (Opinion at 436). The majority points to no actual evidence at the trial which would support this inference. Instead, the majority states that such an inference would be based on the jury’s “own experience and common sense.” (Ibid.). A reasonable person’s “experience and common sense” would be to the contrary.

The vehicle involved, a Ford Explorer, is a very large sports utility vehicle. It is common knowledge that such vehicles have numerous compartments in the “passenger” area.¹ Many of these compartments have covers or are structured so that the contents are not readily visible to passengers.² The Ford Explorer in this case rolled over three times! It is entirely conceivable, and in fact it is likely, that all of the contraband was in various compartments and fell out of the compartments when the vehicle rolled over three times. A Ford Explorer is a very large, heavy, motor vehicle; it is classified as a truck. When such a vehicle rolls over three times, covers of compartments are likely to come open, and the contents of the compartments will obviously become “scattered throughout the vehicle.” (Ibid.). Moreover, based upon the facts in dozens of cases which have come before this Court, controlled dangerous substances carried in motor vehicles are usually concealed in compartments or otherwise hidden. They are not in the passengers’ “view.” (Id. at 436). The inference drawn by the majority is directly contrary to “experience and common sense.” (Ibid.)

The majority repeatedly relies on the fact that, after the vehicle rolled over three times, the contraband “was found strewn throughout the inside compartment of the vehicle” or “scattered throughout the vehicle” or “found strewn throughout the passenger compartment,” etc. (Id. at 436, 438, 440, 443, 444). There is utterly no evidence, however, concerning the location of the contraband before the Ford Explorer rolled over three times. Common sense and experience, upon which the majority purports to rely, teaches that it is more likely than not that the contraband was concealed prior to the vehicle rolling over three times. The majority’s contrary finding is simply irrational.

The majority opinion also states that the United States “Supreme Court’s holding” in Maryland v. Pringle, 540 U.S. ---, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003), “is relevant to the case at bar.” (Opinion at 443). In my view, the Pringle opinion has little or no relevance. The issue in Pringle was whether, under the Fourth Amendment to the United States Constitution, there was probable cause to arrest a front-seat passenger in an automobile when cocaine was hidden behind the back-seat armrest and $763.00 of rolled-up cash was in the glove compartment directly in front of the passenger. A majority of this Court, in an excellent and thorough opinion by Judge Cathell for the Court, held that there was no probable cause to arrest the passenger. Pringle v. State, 370 Md. 525, 805 A.2d 1016 (2002). The United States Supreme Court disagreed, holding that “Pringle’s arrest ... did not contravene the Fourth and Fourteenth Amendments.” Maryland v. Pringle, supra, 540 U.S. at ---, 124 S.Ct. at 802, 157 L.Ed.2d at 777.³ The Supreme Court in Pringle emphasized the difference between the Fourth Amendment’s “probable-cause standard” and “the quanta ... of proof appropriate in ordinary judicial proceedings.... ” 540 U.S. at ---, 124 S.Ct. at 800, 157 L.Ed.2d at 775 (some internal quotation marks omitted). The Court also relied upon, inter alia, the fact that “Pringle and his two companions were in a relatively small automobile” and the fact that there was a large quantity of “cash in the car.” 540 U.S. at ---, 124 S.Ct. at 801, 157 L.Ed.2d at 776-77.

Instead of involving the Fourth Amendment’s “probable cause” standard, the present case involves the sufficiency of the evidence to sustain a criminal conviction. This case presents issues under the Due Process Clause of the Fourteenth Amendment and, independently, under Articles 23 and 24 of the Maryland Declaration of Rights.⁴ Under the Fourteenth Amendment’s Due Process Clause and the principles set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence was insufficient to sustain the respondent’s convictions for possession of heroin, cocaine, and drug paraphernalia.

Moreover, quite apart from any decision under the federal constitution, I would hold, under Articles 23 and 24 of the Maryland Declaration of Rights and this Court’s prior cases, that the evidence was clearly insufficient to sustain the convictions for possession of controlled dangerous substances and drug paraphernalia. Thus, in White v. State, 363 Md. 150, 767 A.2d 855 (2001), this Court unanimously held that the presence of controlled dangerous substances and drug paraphernalia in the trunk compartment of a motor vehicle was insufficient to convict a passenger in the vehicle of possession. In the case at bar, prior to the vehicle rolling over three times, the controlled dangerous substances and the paraphernalia may well have been in one or more of the Ford Explorer’s covered compartments. I fail to perceive any meaningful distinction between the trunk of an automobile and a covered compartment in a sports utility vehicle. Consequently, the majority’s decision in the present case cannot be reconciled with the decision in White. See also, e.g., State v. Smith, 374 Md. 527, 550-551, 823 A.2d 664, 677-678 (2003) (“[T]he knowledge of the contents of the vehicle can be imputed to the driver of the vehicle” but not a passenger, because “owners/drivers and passengers of vehicles are to be treated differently”); Moye v. State, 369 Md. 2, 5, 796 A.2d 821, 822 (2002) (The defendant may not be found guilty of possessing controlled dangerous substances and drug paraphernalia “by virtue of having been staying in a house and having been present in the dwelling’s basement in which drugs were located inside drawers which were open or partially open”); Taylor v. State, 346 Md. 452, 459, 697 A.2d 462, 465-466 (1997) (Evidence “that Taylor was present in a room where marijuana had been smoked recently, that he was aware that it had been smoked, and that Taylor was in proximity to contraband that was concealed in a container belonging to another * * * does not support a rational inference that [Taylor] had possessed the marijuana” as “[possession requires more than being in the presence of other persons having possession; it requires the exercise of dominion or control over the thing allegedly possessed”); Livingston v. State, 317 Md. 408, 415-416, 564 A.2d 414, 418 (1989) (“Merely sitting in the backseat of the vehicle, Livingston did not demonstrate ... that he possessed any knowledge of, and hence, any restraining or directing influence over ... marijuana seeds located on the floor in the front of the car”); Dawkins v. State, 313 Md. 638, 651, 547 A.2d 1041, 1047 (1988) (“The accused, in order to be found guilty [of possessing a controlled dangerous substance], must know of both the presence and the general character or illicit nature of the substance”); State v. Leach, 296 Md. 591, 463 A.2d 872 (1983); Garrison v. State, 272 Md. 123, 321 A.2d 767 (1974).

As earlier stated, the majority’s decision in the case at bar amounts to a holding that the mere presence of contraband in a motor vehicle is sufficient to convict any passenger of knowingly possessing that contraband. In light of today’s decision, no one should get in someone else’s motor vehicle without searching it — thoroughly. And, to be on the safe side, the searcher should probably use a drug-sniffing canine.

Chief Judge BELL joins this dissenting opinion.

1 . The majority’s opinion refers to "the passenger compartment” of the Ford Explorer. (Opinion at 436). Of course, there is no "trunk” in a vehicle such as this. The entire inside of the vehicle constitutes one large continuous area, divided only by the seats.

2 . Although I have never owned a Ford Explorer, I am familiar with one which is owned by a former law clerk of mine. This Ford Explorer has fourteen separate compartments inside of the vehicle, eight of which have covers. Some of the covers will pop open when the vehicle goes over a small bump. Some of the remaining six compartments are structured so that a passenger would not easily see the contents unless the passenger was searching the compartments.

3 . The issue before this Court in Pringle concerned the Fourth and Fourteenth Amendments, and we are, of course, bound by the United

States Supreme Court's holding under the federal constitution. No issue under Article 26 of the Maryland Declaration of Rights was raised in Pringle. If, in the future, an issue under Article 26 is presented under a similar fact situation, this Court would not be bound by the Supreme Court's decision in Pringle. As Judge Marvin Smith stated for this Court in a case involving Article 26, Gahan v. State, 290 Md. 310, 322, 430 A.2d 49, 55 (1981),

"although a clause of the United States Constitution and one in our Declaration of Rights may be 'in pari materia,' and thus 'decisions applying one provision are persuasive authority in cases involving the other, we reiterate that each provision is independent, and a violation of one is not necessarily a violation of the other.’ ”

See also Dua v. Comcast Cable, 370 Md. 604, 621, 805 A.2d 1061, 1071 (2002) ("[W]e have ... emphasized that, simply because a Maryland constitutional provision is in pari materia with a federal one or has a federal counterpart, does not mean that the provision will always be interpreted or applied in the same manner as its federal counterpart.”)

4 . Article 24 of the Declaration of Rights provides as follows:

“That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.”

Article 23 of the Declaration of Rights, inter alia, provides for "the Court ... [to] pass upon the sufficiency of the evidence to sustain a conviction.”