Johnson v. State

THIEME, Judge. Appellant Jemale A. Johnson was convicted by the Circuit Court for Talbot County of possession of crack cocaine with intent to distribute, possession of marijuana, and possession of paraphernalia. The court sentenced appellant to ten years of incarceration, with seven years of that sentence suspended, for his conviction of possession of cocaine with intent to distribute. The court imposed a concurrent sentence of six months for his conviction of possession of marijuana.

Johnson appeals his ¹⁸¹ convictions and presents the following questions for our review: 1 1. Did the trial court err in denying the motion to suppress, since probable cause to arrest appellant for possession of marijuana was lacking? 2. Is the evidence sufficient to support the convictions for possession of marijuana, possession of paraphernalia, and possession of cocaine with intent to distribute? We shall remand to the trial court the issue concerning the sufficiency of the evidence for appellant’s conviction for possession of paraphernalia.

Aside from that issue, we perceive no error by the trial court and we affirm its remaining judgments. Facts Officer Lenox Trams of the Easton Police Department received a broadcast report of a possible car theft. He located a vehicle fitting the description, and observed two men inside. The officer stopped the vehicle and confirmed that the tag number matched the one from the broadcast, but concluded shortly thereafter that the vehicle was not stolen.

As Trams approached the vehicle, however, he smelled marijuana. He also noticed in plain view through the window what he believed to be marijuana on the gear shifter equidistant between the driver and appellant, the front seat passenger. He ordered the driver to exit the vehicle, while he instructed appellant to remain inside. The driver and appellant both denied having any knowledge as to marijuana in the vehicle.

Nevertheless, both were arrested. Trams subsequently found another partially burnt piece of marijuana cigarette in the ashtray of the vehicle. ¹⁸² Appellant was transported to the police station, where he was searched. Trams found a glycine bag containing a whitish powder substance inside a pocket in appellant’s jeans. It was later determined that the substance in the bag was crack cocaine weighing a total of 1.5 grams, with a total value of $150, consisting of several rocks of the drug varying in value from five to forty dollars.

At appellant’s trial, an officer who qualified as an expert in the distribution of drugs testified that in his opinion, based on the various sizes and values of the rocks in the bag, the crack cocaine found in appellant’s jeans was intended for sales and distribution on the street. Upon convicting appellant of the various charges for which he was charged, the trial judge said: Based upon the evidence the Court finds the Defendant guilty of possession of crack cocaine in a quantity sufficient to indicate under all of the circumstances an intent to distribute said crack cocaine. Guilty of possession of marijuana and guilty of possession of paraphernalia. The verdict is based upon the fact that the evidence discloses that the Defendant was in direct personal possession secreted on his person of ten times what is probably the most common unit of packaged crack cocaine.

The common sale in my experience in the last 12 years sitting here is that most people pull up and ask if they are looking, if they are connected, all that other talk. They want a 20. And they buy a 20 or they buy a 40. They very seldom pull up and say, give me 1.5 grams, give me $150 or $200 worth.

Also I think that it’s important that we remember that the term distribution is not limited to sale. One may distribute by sale or by giving it away, by sharing it with ones [sic] friends. So because the Court does not feel that this is a quantity that is found in the usual street sale, the common street sale because of the packaging of the material, because of the differentiation of the pieces, the sizes of the pieces and because the Court feels that in this case that amount indicates an intent under all the circumstances to distribute, Court finds the Defendant guilty as I previously stated. ¹⁸³ Discussion I. Motion to Suppress Appellant contends that the trial court erred in denying his motion to suppress the cocaine found on his person. He argues that his arrest for possession of marijuana was illegal because it was not supported by probable cause, and therefore the cocaine found on him was inadmissible as a product of a search incident to an illegal arrest.

In reviewing the denial of a motion to suppress, this Court looks to the facts adduced at the suppression hearing that are most favorable to the State as the prevailing party. Charity v. State, 132 Md.App. 598, 606 , 753 A.2d 556 (2000); In Re Patrick Y, 124 Md.App. 604, 608-09 , 723 A.2d 523 (1999). “In determining whether the denial of a motion to suppress ... is correct, the appellate court looks to the record of the suppression hearing, and does not consider the record of the trial itself.” Trusty v. State, 308 Md. 658, 670 , 521 A.2d 749 (1987). In considering that evidence, great deference is extended to the fact-finding of the suppression hearing judge with respect to weighing credibility and determining first-level facts. When conflicting evidence is presented, this Court accepts the facts found by the hearing judge, unless clearly erroneous.

Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990); Charity, 132 Md.App. at 606 , 753 A.2d 556 ; Perkins v. State, 83 Md.App. 341, 346-47 , 574 A.2d 356 (1990). “As to the ultimate conclusion of whether a search was valid, we must make our own independent constitutional appraisal by applying the law to the facts of the case.” Charity, 132 Md.App. at 607 , 753 A.2d 556 ; See also Ferris v. State, 355 Md. 356, 368-69 , 735 A.2d 491 (1999); Marr v. State, 134 Md.App. 152, 163 , 759 A.2d 327 (2000), cert. denied, 362 Md. 623 , 766 A.2d 147 (2001). “[T]he ultimate questions of reasonable suspicion and probable cause to make a warrantless search should be reviewed de novo.” Ferris, 355 Md. at 385 , 735 A.2d 491 (quoting Ornelas v. United States, 517 U.S. 690, 691 , 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996)). Bearing in mind the applicable ¹⁸⁴ standard of review, we turn to the merits of appellant’s contention. “[A] police officer is generally required to obtain a search warrant to conduct a valid search of an individual. Nevertheless, there are exceptions to this requirement, such as when the search of an individual is incident to a lawful arrest.” Colvin v. State, 299 Md. 88, 98 , 472 A.2d 953 (1984). The Colvin Court applied the reasoning used by the Supreme Court in United States v. Robinson, 414 U.S. 218 , 94 S.Ct. 467 (1973): A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.

It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but it is also a ‘reasonable’ search under that Amendment. Colvin, 299 Md. at 97-98 , 472 A.2d 953 (citing Robinson, 414 U.S. at 235 , 94 S.Ct. 467 ). The Supreme Court, in United States v. Edwards, 415 U.S. 800 , 94 S.Ct. 1234 , 39 L.Ed.2d 771 (1974), made clear that this rule regarding a search incident to an arrest extended to searches occurring in a police station, when it said, “both the person and the property in his immediate possession may be searched at the station house after the arrest has occurred at another place and if evidence of crime is discovered, it may be seized and admitted in evidence.” Id. at 803 , 94 S.Ct. 1234 . Clearly, “a reasonable search under such circumstances is predicated upon a prior lawful arrest.

Conversely, if the prior arrest is unlawful, the subsequent search and seizure — necessarily derived from it — are also unlawful.” Livingston v. State, 317 Md. 408, 411 , 564 A.2d 414 (1989). It follows therefore that the search of Johnson’s person whereby the crack cocaine was discovered was only valid if his initial arrest for possession of marijuana was valid. If the arrest of John ¹⁸⁵ son for possession of marijuana was invalid, however, then the crack cocaine found in his jeans must be suppressed and his conviction thereof reversed. Accordingly, we shall determine whether Johnson’s arrest for possession of marijuana was lawful.

We begin with the initial stop of the vehicle by Officer Trams. “The Fourth Amendment protects against unreasonable searches and seizures, including seizures that involve only a brief detention.” Ferris, 355 Md. at 369 , 735 A.2d 491 . In Berkemer v. McCarty, 468 U.S. 420 , 104 S.Ct. 3138 , 82 L.Ed.2d 317 (1984), the Supreme Court said, “the usual traffic stop is more analogous to a so-called ‘Terry stop,’ ... than to a formal arrest.” Id. at 439 , 104 S.Ct. 3138 (citing Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968)). Stopping a vehicle for a speeding violation and detaining its occupants does not constitute a custodial arrest. Colorado v. Bannister, 449 U.S. 1, 3 , 101 S.Ct. 42 , 66 L.Ed.2d 1 (1980).

Yet such a stop does constitute a “seizure” within the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653 , 99 S.Ct. 1391 , 59 L.Ed.2d 660 (1979). Therefore, the stop must be reasonable. Terry, 392 U.S. at 20 , 88 S.Ct. 1868 .

In the instant case, it was not a speeding violation for which Officer Trams stopped the subject vehicle. Trams nonetheless had a valid reason for stopping the vehicle, however, as it matched the description broadcast over his radio of a stolen vehicle. Therefore, the stop was reasonable, and it lasted only the short time required for Trams to determine whether the vehicle was stolen. Trams subsequently discovered that the vehicle was not stolen, and the traffic stop ordinarily would have ended there.

Once “the purpose for which the investigatory stop was instituted has been accomplished and no other reasonable suspicion exists to support further investigation, there is no justification for continued detention and interrogation of citizens.” Ferris, 355 Md. at 372 , 735 A.2d 491 . Therefore, “the continued detention of the car and the occupants amounts to a second detention.” Id. The continued detention “is constitutionally permissible only if either (1) ¹⁸⁶ ■the driver consents to the continuing intrusion or (2) the officer has, at a minimum, a reasonable, articulable suspicion that criminal activity is afoot.” Id. The United States Constitution requires that the “police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21 , 88 S.Ct. 1868 (footnote omitted).

Once the initial stop concluded concerning whether the vehicle was stolen, the reasonableness of any intrusion is measured against an objective standard: whether.a reasonably prudent person in the officer’s position would have been warranted in believing that Johnson was involved in criminal activity that was afoot. Derricott v. State, 327 Md. 582, 588 , 611 A.2d 592 (1992). “Due weight must be given not to [an officer’s] inchoate and unparticularized suspicion or ‘hunch,’ but to ‘the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.’ ” Id. (quoting Terry, 392 U.S. at 27 , 88 S.Ct. 1868 ). In the subject case Trams noticed an “overwhelming” and “powerful” odor he believed to be burnt marijuana.

Clearly, his detection of this smell provided him with the reasonable and articulable suspicion that justified the continued detention. He then questioned both the driver and passenger. This questioning was reasonable both in scope and duration. While questioning the individuals, Trams observed in plain view a marijuana bud on the gearshift cover in the vehicle. “The Fourth Amendment does not protect the motorist against the seizure of any incriminating evidence observed in ‘open view.’” Pryor v. State, 122 Md.App. 671, 681 , 716 A.2d 338 (1998)(quoting Brown v. State, 15 Md.App. 584, 606-07 , 292 A.2d 762 (1972)). “A police officer who has made a lawful stop of an automobile has every right to look ‘through the window into the interior of the car (with or without a) flashlight ...

(just as) every member of the public (has) a right to do,’ and to thereafter search the automobile if the look through the window establishes probable cause for ¹⁸⁷ such action.” Pryor, 122 Md.App. at 681 , 716 A.2d 338 (quoting Scales v. State, 13 Md.App. 474, 478-79 , 284 A.2d 45 (1971)). The plain view doctrine serves to supplement a previously justified intrusion, ... and permits a warrantless seizure.” Livingston, 317 Md. at 412 , 564 A.2d 414 . Accordingly, Officer Trams had every right to spot the marijuana bud through the window of the vehicle. “A police officer has authority to make a warrantless arrest when the officer has probable cause to believe that a misdemeanor is being committed in his presence.” Ford v. State, 37 Md.App. 373, 376 , 377 A.2d 577 (1977). In Ford , a police officer had pulled over a driver of a vehicle for speeding.

The driver exited the vehicle, and when he did so a strong odor of marijuana emanated from the vehicle. The officer subsequently placed the driver under arrest based on his detection of the marijuana odor. We said that “information derived through the sense of smell alone might, in proper cases, serve to establish probable cause to believe that a crime was being committed.” Id. at 377 , 377 A.2d 577 . We went on to reiterate: We have no doubt, accordingly, that knowledge gained from the sense of smell alone may be of such character as to give rise to probable cause for a belief that a crime is being committed in the presence of the officer.

When such conditions exist a warrantless arrest infringes upon no constitutional right. Id. at 379 , 377 A.2d 577 . In Johnson v. State, 8 Md.App. 187, 191 , 259 A.2d 97 (1969), we discussed case law relevant to warrantless arrests: It is, of course, elementary that a warrantless arrest is valid where the arresting police officer has probable cause to believe that a misdemeanor has been or is being committed in his presence and that the arrestee is the misdemean-ant. Winebrenner v. State, 6 Md.App. 440 , 251 A.2d 610 ; Robinson v. State, 4 Md.App. 515 , 243 A.2d 879 ; Salmon v. State, 2 Md.App. 513 , 235 A.2d 758 .

In determining whether a misdemeanor has been committed in the officer’s ¹⁸⁸ presence the term ‘presence’ denotes that the commission of the misdemeanor is perceptible to the officer’s senses, whether they be visual, auditory, or olfactory. Davids v. State, 208 Md. 377 , 118 A.2d 636 ; Ramsey v. State, 5 Md.App. 563 , 248 A.2d 659 . And in determining whether probable cause exists to justify the arrest, ‘only the probability, and not a prima facie showing of criminal activity is the standard of probable cause.’ Spinelli v. United States, 393 U.S. 410, 419 , 89 S.Ct. 584, 590 , 21 L.Ed.2d 637, 645 . More specifically, the rule of 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, but more evidence than would arouse a mere suspicion.

Edwardsen v. State, 243 Md. 131 , 220 A.2d 547 ; Radcliffe v. State, 6 Md.App. 285 , 251 A.2d 11 ; Cornish v. State, 6 Md.App. 167 , 251 A.2d 23 ; Simms v. State, 4 Md.App. 160, 242 A.2d 185 . Here, Trams not only smelled burnt marijuana, but he also saw a marijuana bud in plain view. We find that Trams had probable cause to believe that a crime was being committed in his presence. The issue, however, is not quite that elementary.

Johnson’s argument is premised upon the notion that Trams 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. An officer without a warrant should not make an arrest for a misdemeanor unless ... the circumstances are such that they would justify a person of ordinary prudence in believing that the suspected person is committing a misdemeanor. ¹⁸⁹ Livingston, 317 Md. at 413 , 564 A.2d 414 (quoting Davids v. State, 208 Md. 377, 384 , 118 A.2d 636 (1955)). 121-241 “In other words, there must be some factual basis to believe that a suspect is a participant in the misdemeanor before he may be arrested.” Id.

In Livingston , appellant was a rear seat passenger in a vehicle in which two marijuana seeds were discovered on the floor in the front. The Court held that such circumstances were insufficient to inculpate Livingston for possession of marijuana. Id. We note, however, that the Livingston Court weighed heavily that Livingston was a back seat passenger, and obviously limited its holding to the circumstances existing in that case, namely Livingston’s status as a back seat passenger where evidence of criminal activity was found in the front of a vehicle.

Indeed, almost eveiy time the Court mentioned his name, it made sure to note his status as a “rear seat passenger.” 2 ¹⁹⁰ The legality of a warrantless arrest is determined by the existence of probable cause at the time of the arrest. See Collins v. State, 322 Md. 675, 679 , 589 A.2d 479, 481 (1991). “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). Probable cause exists where the facts and circumstances within the officer’s knowledge and of which he had reasonably trustworthy information would justify the belief of a reasonable person that a crime has been or is being committed. See Beck v. Ohio, 379 U.S. 89, 91 , 85 S.Ct. 223 , 13 L.Ed.2d 142 (1964); Collins, 322 Md. at 680 , 589 A.2d at 481 .

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 (quoting Brinegar v. United States, 338 U.S. 160, 175-76 , 69 S.Ct. 1302 , 93 L.Ed. 1879 (1949)). Johnson v. State, 356 Md. 498, 504-05 , 740 A.2d 615 (1999) (footnote omitted). Section 594B of Article 27 sets forth the law in Maryland governing warrantless arrests, and provides in pertinent part: (a) Arrest for crime committed in presence of officer. — A police officer may arrest without warrant any person who commits, or attempts to commit, any felony or misdemeanor in the presence of, or within the view of, such officer. (b) Arrest for crime apparently committed in presence of officer. — A police officer who has probable cause to believe that a felony or misdemeanor is being committed in the officer’s presence or within the officer’s view, may arrest without a warrant any person whom the officer may reasonably believe to have committed such offense.

Md.Code (1957, 1996 Repl.Vol.), § 594B of Art. 27. Based on the circumstances that existed at the time of Johnson’s arrest, it was reasonable for Trams to believe that ¹⁹¹ 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 Trams with probable cause to make a warrantless arrest of Johnson. We are not persuaded by Johnson’s insistence that he was unaware of the presence of marijuana in the vehicle.

At the suppression hearing, Trams testified that he detected an “overwhelming” and “powerful” odor of marijuana when he approached the vehicle. He testified further that “[f]rom the odor it would appear to be that it had just been smoked prior to me stopping the car.” The following was also adduced during the suppression hearing: [Defense Counsel]: Your perception is that the smell was strong enough so that both people in the car had to know that there had been marijuana in the car? [Officer Trams]: Yes. [Defense Counsel]: Let me sum up that you, you concluded by believing it was more likely than not that as a result of the smell of marijuana in the car that either the driver or the passenger or both, excuse me, both the driver and the passenger were aware of the flake or bud of marijuana that you found on the shift? [Officer Trams]: Yes. [Defense Counsel]: And as a result of that perception of probable cause you effectively arrested both individuals? [Officer Trams]: Yes. Officer Trams testified further when questioned by the State at the suppression hearing: [State]: How close were you to the car when you smelled the odor of burnt marijuana? [Officer Trams]: Approximately as I approached the vehicle I was at the rear bumper of the vehicle when I could smell the odor of marijuana. ¹⁹² [Officer Trams]: The gear shift had a leather or a plastic cover and the piece of marijuana was actually on top of the covering of the gear shift. [State]: And just for the records [sic] sake how close was that to each individual in the car? [Officer Trams]: The gear shift was in the middle of the vehicle so it’s within arms [sic] reach of both of them. [State]: Was it closer to either one or was it kind of right in the middle? [Officer Trams]: It was right in the middle. Weighing the credibility of witnesses and resolving any conflicts in the evidence are tasks proper for the fact finder.

See Binnie v. State, 321 Md. 572, 580 , 583 A.2d 1037 (1991); McKinney v. State, 82 Md.App. 111, 117 , 570 A.2d 360 (1990). In performing this role, the fact finder has the discretion to decide which evidence to credit and which to reject. See Velez v. State, 106 Md.App. 194, 202 , 664 A.2d 387 (1995). We find no reason to disturb the finding by the trial court regarding the credibility of Tram’s testimony as to what he observed and smelled prior to arresting Johnson.

Accordingly, we cannot conclude that Johnson was unaware of the presence of marijuana in the vehicle. There existed an “overwhelming” and “powerful” odor emanating from the vehicle he was in, and marijuana was present on the gearshift, within his arm’s reach. Bearing in mind that 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, we think that adequate facts and circumstances existed within the officer’s knowledge that would have justified the belief of a reasonable person that a crime had been or was being committed by Johnson. We hold that the trial court was correct in its determination that probable cause existed to arrest Johnson in light of Officer Tram’s explanation of the circumstances surrounding the traffic stop.

Upon looking to the facts adduced at the suppression hearing in a light most favorable to the State as ¹⁹³ the prevailing party, we find that appellant’s motion to suppress was properly denied.

II

Sufficiency of the Evidence Appellant asserts that the evidence was insufficient to sustain his convictions for possession of marijuana, possession of paraphernalia, and possession of cocaine with intent to distribute. We disagree as to the marijuana and cocaine with intent to distribute, and hold that the evidence was in fact sufficient to sustain those convictions. We remand, however, concerning the conviction for possession of paraphernalia. “In reviewing the sufficiency of the evidence to sustain a criminal conviction, it is the duty of this Court to determine ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Taylor v. State, 346 Md. 452, 457 , 697 A.2d 462 (1997) (quoting Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979)); Moye v. State, 139 Md.App. 538, 544 , 776 A.2d 120 (2001). “The judgment of the circuit court will not be set aside unless clearly erroneous, with due regard given to the opportunity of the trial court to judge the credibility of the witnesses.” Taylor, 346 Md. at 457 , 697 A.2d 462 . When reviewing the sufficiency of the evidence, “ ‘it is not the function or duty of the appellate court to undertake a review of the record that would amount to, in essence, a retrial of the case.’ ” McDonald, 347 Md. at 474, 701 A.2d at 685 (citing State v. Albrecht, 336 Md. 475, 478 , 649 A.2d 336, 337 (1994)).

Our function is to review the evidence in the light most favorable to the State, see id. (quoting Albrecht, 336 Md. at 478 , 649 A.2d at 337 ) (citing Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 (1979)), and to give “ ‘due regard to the [fact finder’s] finding of facts, its resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses.’ ” Id. (citing Albrecht, 336 Md. at 478 , 649 A.2d at 337 ). While we do not re-weigh the evidence, ¹⁹⁴ we do determine whether the verdict was supported by sufficient evidence, direct or circumstantial, which could convince a rational trier of fact of the defendant’s guilt of the offenses charged beyond a reasonable doubt.

See id. (citing Albrecht, 336 Md. at 478-79 , 649 A.2d at 337 ). White v. State, 363 Md. 150, 162 , 767 A.2d 855 (2001). “Possession shall mean the exercise of actual or constructive dominion or control over a thing by one or more persons.” Id. at 163 , 767 A.2d 855 . “[T]o prove control, the evidence must show directly or support a rational