Burns v. State

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 ⁵³⁰ 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. ⁵³¹ 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 ⁵³² 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 airest 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 1 can only arrest the defendant if he has probable cause.

I 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. ⁵³³ 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, ivithout 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 airest 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 winch 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 ⁵³⁴ 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 existed at the time of Johnson’s arrest, it was reasonable for [the officer] to believe that Johnson was in possession of marijuana. We find that the odor of burnt marijuana from the vehicle, along with the observation of the marijuana bud on the gearshift cover—within arm’s reach of Johnson, provided [the officer] with probable cause to make a warrantless arrest of Johnson. 142 Md.App. at 190-91 , 788 A.2d 678 (emphasis supplied).

Were a decision called for (it is not), the factual situation in this case manages to squeeze in between those two almost abutting ramparts. Unlike the situations in Livingston and Wallace, there is not here the total absence of any additional nexus between the passenger and the contraband. On the other hand, the nexus here, at least at the very early stage now being measured, was slighter than the nexus in Johnson . This scenario is truly located in the interstice.

In Johnson , at least two factors contributed to the possible nexus. There was first the double-barreled factor that the ⁵³⁵ contraband was “in plain view within arm’s reach” of the passenger. In addition to that visual and physical proximity, the odor of burnt marijuana gave rise to the permitted inference that Johnson, one of two occupants of the car, was participating in its use. In this case, by contrast with Johnson , we have a single factor, rather than two, contributing to the nexus.

Although evidence developed a few minutes later permitted an inference of communal crack smoking, that evidence was not yet available at the moment for decision now under discussion. The other possibly contributing factor, however, was present. Judge Clark found, as a fact, that the glassine bag of suspected crack cocaine was in plain view on the center console. It was also, ipso facto, within arm’s reach of the appellant.

The issue could, therefore, were we to decide it, be whether a single linking strand, rather than two, would still be enough to anchor this case firmly on the Johnson side of the great probable cause divide. It is another consideration, however, which makes this case a singularly inappropriate vehicle for deciding whether probable cause could have been found. The overriding procedural reality is that probable cause was not found. Although probable cause itself is a mixed question of law and fact with respect to which an appellate court may make its own independent de novo determination, Ornelas v. United States, 517 U.S. 690 , 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996), the facts that go into probable cause are within the fact-finding prerogative of the suppression hearing judge.

Appellate courts extend great deference to such fact-finding, unless it is deemed to have been clearly erroneous. Whether the contraband was within the plain view of the passengers is such a fact. Judge Clark found that it was. Whether the contraband was within the appellant’s arm’s reach is such a fact.

Implicitly, Judge Clark found that it was. Neither proximity nor plain view nor the two in combination, however, automatically establish probable cause. They are factual predicates from which the inference might arise that ⁵³⁶ the appellant was thereby exercising at least joint dominion and control over the contraband. It is that final phenomenon that would establish probable cause of possession.

In this case, Judge Clark, even if he could have done so, declined to draw that critical inference: In the instant case, while Trooper Malaspina certainly had probable cause to believe that the Defendant had knowledge of the presence of the drugs in the vehicle and could infer that he knew of the illegal nature of the drugs, there were no facts articulated by the officer which would have given him probable cause to believe that the Defendant had both the power and the intent to exercise control over the drugs. (Emphasis supplied). If in this case Judge Clark had actually drawn that final and critical inference, we would, of course, be highly deferential. We might well have held that the factual predicate was sufficient to permit the inference and that his drawing of the inference was not, therefore, clearly erroneous.

That an inference might be permitted, however, by no means suggests that it is compelled. Declining to draw an inference, as surely as drawing an inference, is quintessential fact-finding, something to which we remain steadfastly deferential, whichever way it goes. It is the very nature of deference, moreover, that, when the probable cause determination is based on intermediate fact-finding, the conclusion that we might have affirmed Judge Clark, had he found probable cause, by no means suggests that we would not similarly affirm him when he, based upon his fact-finding, does not find probable cause. It is quite possible (but we do not decide it) that we would have affirmed him in either event.

Inevitable Discovery As an Alternative Theory Having lost the opening round, the State then attempted to salvage the search by invoking the redemptive intervention of “inevitable discovery.” Its thesis was that, even granting an initially unlawful arrest, 1) a subsequent search of the interior of the Chevrolet pursuant to the Carroll Doctrine revealed the ⁵³⁷ handgun and 2) the proximity between the appellant and the handgun would a) have established probable cause to arrest the appellant at that point, b) have resulted in its own search incident to that lawful arrest, and c) have revealed the cocaine in the appellant’s pocket in any event. The inevitable discovery notion, coming to us from Nix v. Williams, 467 U.S. 431 , 104 S.Ct. 2501 , 81 L.Ed.2d 377 (1984), is an exemption from the exclusionary consequences of the larger “fruit of the poisonous tree” doctrine. It is sometimes referred to, metaphorically, as one of the ways of “unpoisoning the fruit.” The theory grants the existence of a primary illegality but nonetheless holds that derivative evidence need not be suppressed if it would have been, in any event, inevitably discovered. See Stokes v. State, 289 Md. 155, 162-66 , 423 A.2d 552 (1980).

Judge Clark, at the conclusion of the suppression hearing, reserved his ruling on the “inevitable discovery” alternative theory of admissibility and asked both parties to submit legal memoranda. In a written Opinion and Order of Court filed immediately prior to the commencement of the trial, he ruled in favor of the State on the issue of inevitable discovery. It is this Court’s finding that Trooper Malaspina, given the totality of the circumstances, had probable cause to arrest the driver of the vehicle. Pursuant to that arrest, the trooper also had probable cause to search the vehicle.

It is this Court’s further finding that in searching the vehicle Trooper Malaspina would have found the handgun located under the rear of the passenger seat, essentially at the Defendant’s feet. Given the Defendant’s location in the car and the fact that the butt of the handgun was facing the Defendant and given the totality of the circumstances, which included the Defendant’s movement within the car prior to the trooper approaching it, it is this Court’s opinion that the officer would have had probable cause to believe that the handgun ivas possessed by the defendant and therefore probable cause to arrest the Defendant at that point. Because the Court finds that the trooper ultimately would ⁵³⁸ have had probable cause to arrest the Defendant and could have then searched the Defendant pursuant to that arrest, the Court finds that the drugs seized from the Defendant inevitably would have been discovered by Trooper Malaspina and therefore the Court denies the Motion to Suppress those drugs. (Emphasis supplied).

The arrest of the appellant and the discovery of the handgun under the right front seat were both part of a single and rapidly unfolding investigative episode. If, as Judge Clark ultimately ruled, the nexus between the handgun and the appellant established probable cause for the appellant’s arrest, that connection would either 1) have ripened or “beefed up” the earlier predicate for the appellant’s arrest or 2) have constituted an additional or alternative arrest to justify the subsequent search incident. To review Judge Clark’s ruling as to inevitable discovery, therefore, we must determine whether the connection between the appellant and the handgun was sufficient to establish probable cause for the appellant’s arrest for the crime of transporting a handgun. Probable Cause to Connect The Appellant With the Handgun Whatever doubt might linger as to whether probable cause (as to the appellant) had yet reached critical mass when the driver first alighted from the left front door and Trooper Malaspina spotted the clear plastic baggie on the center console, that doubt had been resolved by the time, a minute or two later, the two passengers alighted from the right front door and the trooper recovered the .38 revolver.

By that point (if not before), the substantiality of the factual predicate from which a judge might (though, of course, he need not) infer probable cause for the appellant’s arrest had inexorably crossed the line that separates Johnson v. State, 142 Md.App. 172 , 788 A.2d 678 , from Wallace v. State, 142 Md.App. 673 , 791 A.2d 968 . ⁵³⁹ A. Being Aware of the Level At Which the Bar Is Set As we analyze the adequacy of the basis for a probable cause determination, it behooves us to remember, moreover, precisely what it is that we are measuring. In Johnson v. State, 142 Md.App. at 190, 788 A.2d 678 , Judge Thieme quoted from the opinion of the Court of Appeals in Johnson v. State, 356 Md. 498, 504-05 , 740 A.2d 615 (1999), as he pointed of how significantly less a connection need be shown to establish probable cause of possession than need be shown to support a guilty verdict for possession. “The rule of probable cause is a non-technical conception of a reasonable ground for belief of guilt, requiring less evidence for such belief than would justify conviction but more evidence than that which would arouse a mere suspicion.” Doering v. State, 313 Md. 384, 403 , 545 A.2d 1281, 1290 (1988).... We have recognized that in dealing with probable cause, we deal with probabilities. “These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Doering, 313 Md. at 403 , 545 A.2d at 1290 . 142 Md.App. at 190, 788 A.2d 678 (emphasis supplied). For the difference between the probable cause standard and the legal sufficiency standard, see the excellent discussion by Judge Battaglia in her dissenting opinion in Pringle v. State, 370 Md. 525, 559-60 , 805 A.2d 1016 (2002).

Judge Battaglia stressed emphatically the difference between the two things being measured, notwithstanding the confusing commonality of the subject matter of the measurements. I agree that the legal sufficiency of evidence in possession of narcotics cases requires the State to produce evidence of dominion or control over the narcotic allegedly possessed, and knowledge therewith, beyond a reasonable doubt. I disagree, however, that the degree of evidence required for a conviction on the charge of possession of narcotics can be equated to that which is required of police officers when making probable cause determinations for warrantless ar ⁵⁴⁰ rests. Courts reviewing such determinations must not confuse or blend the two standards: probable cause for an arrest (a lower standard than legal sufficiency for a conviction) requires the reasonable belief that the person arrested had committed or was committing the felony crime of possession of narcotics.

As we have oft explained, “probable cause is a nontechnical conception of a reasonable ground for belief of guilt, requiring less evidence for such belief than would justify a conviction ....” (Emphasis supplied). We are not suggesting that the factual predicate about to be discussed would not have been enough, in and of itself, to support a conviction. We are only making the point that on this threshold issue of probable cause, a lot less need be shown. We are, after all, not measuring the level of certitude that must exist for a defendant to be deprived of freedom.

We are only measuring the reasonableness of a non-lawyer police officer’s on-the-street reaction to a rapidly unfolding confrontation. We must never forget the critical difference between these two very different measurements. The case law, however, frequently mingles these two standards of review shamelessly. B. The Inferrable Act of Hiding the Gun In holding that this case is more like Johnson than like Livingston and Wallace, we note three additional clues, beyond the appellant’s mere passenger status, that raised suspicion as to his probable connection with the handgun.

The handgun was found beneath the right front passenger seat. That seat was immediately in front of where the appellant was sitting, as a right-hand, rear-seat passenger. Trooper Malaspina testified, moreover, that, as he approached the car, he specifically observed the appellant 1) repeatedly looking back in his direction, 2) reaching around in the car, and 3) then bending down in front of him. It might be concluded that such movements were ambiguously innocuous,.but we, of course, at this juncture are taking ⁵⁴¹ that version of the evidence most favorable to the State.

Body movements that may be ambiguous in a vacuum, moreover, may take on clearer significance when a loaded gun is discovered within the ambit of those movements. It could reasonably be inferred that the appellant, on observing the approach of the police car, had deliberately attempted to hide the loaded weapon underneath the seat in front of him. C. The Communal Nature of Smoking Crack A second clue contributes to the permissibility of the inference that the appellant was in joint possession of the handgun. It is, of course, not required that he have been in exclusive possession.

It is enough that he, participating with others, may have been in joint possession. Just prior to discovering the handgun, Trooper Malaspina discovered the plastic tube pipe, an instrumentality used for smoking crack cocaine, between the center console and the driver’s seat. That fact, we hold, itself takes the case out of the Livingston category, where two marijuana seeds were simply found on the floor of the car, and places this case instead in the Johnson category, where the odor of marijuana gave rise to the permitted inference that the communal act of marijuana smoking had recently been taking place. The tube pipe’s only known use is for smoking crack cocaine.

Just before being stopped, the driver was observed reaching toward the center of the car, where the tube pipe was found. Inferentially, he had theretofore been holding it and, at the approach of the police, attempted to hide it or, at the very least, to put it aside. The erratic driving behavior, which was the initial cause for the stop, was corroborative of the driver’s use of an intoxicant. Crack cocaine, unlike marijuana, leaves no odor after being smoked.

The fact that Trooper Malaspina detected no odor did not, therefore, gainsay the possibility that the three companions, when surprised by the police, had been smoking crack. Smoking crack, moreover, like smoking marijuana, is a communal activity, particularly in the