Burns v. State

817 A.2d 885

149 Md. App. 526

Earl P. BURNS, Jr. v. STATE of Maryland.

No. 1601, Sept. Term, 2001.

Court of Special Appeals of Maryland.

February 27, 2003.

Jennifer Cameron (Rule 16 Student Attorney) (Stephen E. Harris, Public Defender and Bradford C. Peabody, Assistant Public Defender, on the brief), Baltimore, for appellant.

Shannon E. Avery, Assistant Attorney general (J. Joseph Curran, Jr., Attorney General, on the brief), Baltimore, for appellee.

Argued before KENNEY, DEBORAH S. EYLER and CHARLES E. MOYLAN, JR. (retired, specially assigned), JJ.

CHARLES E. MOYLAN, JR., Retired, Specially Assigned.

The appellant, Earl P. Burns, Jr., was convicted by a Charles County jury, presided over by Judge Richard J. Clark, of 1) transporting a handgun in a vehicle, 2) possession of cocaine, 3)the possession of drug paraphernalia (two separate counts), 4) theft, and 5) illegal possession of a regulated firearm. On this appeal, he raises the two contentions

1. that Judge Clark erroneously denied his motion to suppress the physical evidence, and

2. that the evidence was not legally sufficient to sustain the convictions.

The appellant was one of three occupants—to wit, the right-hand, rear-seat passenger—of a two-door Chevrolet Cavalier stopped by the Maryland State Police near Waldorf at approximately 3:30 a.m. on January 14, 2001. In the car was, inter alia, a loaded and stolen .38 caliber handgun. The resolution of many of the sub-contentions in this case depends on the adequacy of the factual predicate to establish a connection—first at the probable cause level and then at the guilt level— between the appellant and the handgun.

The Suppression Hearing

Four categories of evidence were introduced against the appellant: 1) the handgun found under the front passenger seat, 2) some baggies containing cocaine found on the center console, 3) a plastic tube pipe found between the driver's seat and the center console, and 4) a black baggie containing cocaine residue found in the appellant's pocket. The suppression hearing was concerned only with the baggie and cocaine residue found in the appellant's pocket. Even if the appellant were to prevail on the suppression issue, therefore, that would affect, at most, the count charging possession of cocaine and not the other five counts.

The State's theory at the suppression hearing was that the cocaine from the appellant's pocket was obtained in the course of a search incident to a lawful arrest. The arrest was based essentially on the physical proximity between the appellant and the drugs found on the center console. The appellant's theory was that the predicate arrest was unlawful.

When State Trooper Antonio J. Malaspina stopped the suspect Chevrolet on the early morning of January 14, it was unquestionably a valid traffic stop. The vehicle had been regularly weaving from lane to lane and at other times had straddled the lanes. The trooper believed that the driver was under the influence of alcohol. Accordingly, he activated his siren and his emergency lights.

At the conclusion of the suppression hearing, Judge Clark made findings of fact with respect to the arrest of the driver and the initial discovery of suspected drugs.

The officer approached the driver's side of the vehicle and he smelled an odor of alcohol, which he classified as a strong odor of alcohol coming from the passenger compartment of the vehicle. He asked the driver to step out of the vehicle and when the driver did, he observed a plastic baggie which contained three smaller plastic baggies which contained a substance which in his training and experience the officer believed to be cocaine.

He placed the driver immediately under arrest, searched his person, and found a crack pipe, a glass pipe used, according to Trooper Malaspina, by individuals to smoke crack cocaine, in his pocket.

(Emphasis supplied).

An Unlawful Arrest: The Lack of Probable Cause

At that point, the trooper directed the two passengers, one of whom was the appellant, to step out of the car. As they did so, they were both placed under arrest. Shortly thereafter, the appellant was transported to the Maryland State Police Barrack, where the search incident took place. Judge Clark ruled that what had transpired prior to the arrest of the appellant did not constitute probable cause for his arrest.

What the defendant complains of is [that] his arrest was not supported by probable cause, and the search incident to his arrest, therefore, was not justified, and that the bag of cocaine, little bag of cocaine seized from his watch pocket when he was searched at the Maryland State Police Barrack ought to be suppressed.

Now, it is my belief, in connection with this matter, that when he found the cocaine in the center console, that Trooper Malaspina had reasonable articulable suspicion to detain the other individuals in the car. It is my belief that simply finding the cocaine in that location, without an indication of the smell of cocaine, the use jointly of the people in possession of that substance, especially in light of finding a crack pipe in the pocket of the driver, does not give the police officer probable cause to arrest everybody in the vehicle. Certainly, there could be times when there is probable cause to do that, but simply being a person in a car in which crack cocaine is found doesn't, in my opinion, give a police officer probable cause, in and of itself, to arrest everybody in that car....

... [The trooper] chose to arrest the defendant, and he can only arrest the defendant if he has probable cause. do not believe that he had probable cause to arrest the defendant, and I believe that because he was searched pursuant to that arrest, that that search would not be a constitutional search, and the seizure of that property would not be constitutional.

(Emphasis supplied).

Although the State urges us to reverse that ruling, it is unnecessary for us to address the merits of that very particular probable cause ruling at that very early moment in the total episode. Because we are, on an alternative ground, affirming in any event Judge Clark's decision that the evidence not be suppressed, it is unnecessary for us to indulge the State and, perhaps, redundantly pile Ossa on Pelion.

We nonetheless note, in passing, that the question of the possible connection between the appellant, a backseat passenger, and a plastic baggie of suspected cocaine on the center console could have been an academically intriguing one. The fascination is that the factual situation on this issue falls halfway between Johnson v. State, 142 Md.App. 172, 788 A.2d 678 (2002), on the one hand, and the combination of Wallace v. State, 142 Md.App. 673, 791 A.2d 968, aff'd State v. Wallace, 372 Md. 137, 812 A.2d 291 (2002), and Livingston v. State, 317 Md. 408, 564 A.2d 414 (1989), on the other hand, the two positions which have served heretofore as our closest bracketing of the target. We thought the positions were close before, but we may have split the difference. In Wallace and in Livingston it was held that the absence of any nexus, other than presence in the car, between a passenger and the contraband precluded a finding of probable cause of possession. In Johnson, by contrast, we held that a slight nexus between passenger and contraband was enough to establish such probable cause.

In Livingston, there were no factors other than Livingston's mere presence as a back-seat passenger to link him to the contraband. The Court of Appeals, 317 Md. at 416, 564 A.2d 414, concluded:

Without more than the mere existence of two marijuana seeds located in the front of the car, we hold that the police officer lacked probable cause to arrest Livingston, a rear seat passenger, for possession of marijuana.

In Wallace, there was no factor other than Wallace's status as a back-seat passenger (as one of five occupants) to connect Wallace with the source of a drug-sniffing canine's positive "alert" on a car. In his opinion for this Court, Judge Kenney concluded:

In this case, there was evidence of the commission of a crime when Bosco gave a positive alert to the Buick. This alert permitted a search of the vehicle, but, without anything more particular to link any one passenger in the car, including appellant, to the drugs smelled by Bosco, the search of each individual passenger absent an arrest based upon probable cause was improper. 142 Md.App. at 705, 791 A.2d 968 (emphasis supplied). In both of those cases, the defendants were simply passengers in a car in which contraband was found.

In Johnson v. State, by contrast, this Court held that an adequate connection had been shown between Johnson, a front-seat passenger and one of two occupants of a car, and the suspected contraband. When an officer stopped the car for a traffic infraction, he detected the strong smell of marijuana. He observed, moreover, a marijuana bud on the gearshift cover between the driver and Johnson. Johnson successfully sought to distinguish his status from that of the driver.

Johnson's argument is premised upon the notion that [the officer] had no probable cause pertaining to him—the passenger of the vehicle. Even if there was probable cause pertaining to the driver, who was operating and "controlling" the vehicle, it may not necessarily follow that there was probable cause to believe that the passenger was involved in whatever crime that may have been committed by the driver. Accordingly, having determined that probable cause existed as to the driver in this case, we must nonetheless continue with our analysis of probable cause to determine if it existed as to appellant as well.

142 Md.App. at 188, 788 A.2d 678 (emphasis supplied).

We held that 1) the odor of marijuana and 2) the location of Johnson "within an arm's reach of" the marijuana bud were enough to establish probable cause for the passenger's arrest and subsequent search incident. Judge Thieme reasoned:

Based on the circumstances that

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