Larocca v. State

DEBORAH S. EYLER, Judge. In a court trial in the Circuit Court for Washington County, James Bradley Larocca, the appellant, was convicted of possession with intent to distribute marijuana and possession of marijuana. The court merged the simple possession conviction and sentenced the appellant to five years’ imprisonment, with all but two years suspended in favor of three years’ probation. 1 The appellant presents three questions for review: ⁴⁶⁵ I. Was the evidence legally sufficient to support his conviction?

II

Did the trial court err in considering a witness’s extrajudicial statement as substantive evidence?

III

Did the trial court err in denying the appellant’s motion to suppress evidence? This case originally was placed on the Court’s non-argument docket. Because this type of sufficiency of the evidence issue is likely to recur in other cases, this Court set the case in for an en banc hearing, and permitted the parties to file supplemental briefs. For the following reasons, we shall affirm the judgment of the circuit court.

FACTS AND PROCEEDINGS On January 16, 2003, the appellant and his friend, David Hinkle, were arrested and charged with possession of marijuana with intent to distribute and simple possession. Hinkle pleaded guilty to the lesser offense, and the State nol prossed the greater offense. At the appellant’s trial, the State called as witnesses Sergeant Johnny Lee Murray, Officer John Lehman, and Officer Todd Webster, of the Hagerstown Police Department; Hinkle; and Jeremy Miner, another friend of the appellant. The appellant did not call any witnesses.

He did, however, introduce into evidence an affidavit signed by Hinkle. The evidence viewed in the light most favorable to the verdict was as follows. On the night in question, the appellant, Hinkle, and Miner were in Hagerstown, “just riding through town” in a Honda Civic registered to Hinkle’s mother. Hinkle was driving.

The appellant was the front seat passenger. Miner was sitting in the back seat. It had been snowing on and off throughout the day. 2 ⁴⁶⁶ At the appellant’s request, Hinkle drove to the 600 block of N. Mulberry Street. Hinkle double parked in front of a house there.

It so happened that Sergeant Murray and Officer Webster, dressed in plainclothes, were at that location, conducting an undercover “trash pull.” The officers were assigned to a special unit that was targeting street level drug dealers. No one else was in the area. According to those portions of the testimony of Hinkle and Miner most favorable to the State, as the trio was driving to N. Mulberry Street, Miner produced a marijuana blunt, lit it, smoked it, and passed it to Hinkle. This communal partaking in marijuana took place in the appellant’s presence, in the passenger compartment of the Honda.

It continued while the appellant got out of the car and went into the house where the Honda was double parked. Sergeant Murray, standing nearby, watched as the appellant entered the house on N. Mulberry Street and then a short time later exited and returned to the Honda. Sergeant Murray did not see the appellant carrying or holding anything. However, when the appellant opened the car door to get back inside, Sergeant Murray smelled burning marijuana in the vicinity of the Honda.

He could not see inside the Honda because its windows were tinted and the rear window was covered with snow. Sergeant Murray noticed that the Honda’s rear license plate was completely covered with snow. Sergeant Murray told Officer Webster about what he had seen and smelled. The officers put in a request for a uniformed colleague, Officer Lehman, to follow the Honda in a marked cruiser, which he did.

The undercover officers followed behind Officer Lehman in their unmarked car. The marijuana smoking inside the Honda continued after the three men departed from N. Mulberry Street. While the Honda was waiting at a red light, Hinkle noticed police car lights coming up behind him, “from back ... back about a mile or so.” Hinkle testified, “And as soon as I seen him, I was trying to get through the intersection. I didn’t know if ⁴⁶⁷ the police officer was coming to pull me over or trying to ... on a call that he had to get to.” Officer Lehman made the traffic stop and approached the driver’s side of the car.

Sergeant Murray and Officer Webster approached the opposite side of the vehicle and asked the passengers to roll down their windows. When the windows were rolled down, Sergeant Murray and Officer Webster both smelled the odor of burnt marijuana coming from inside the car. According to Officer Webster, it took about three to five minutes to make the traffic stop. Officer Lehman obtained Hinkle’s driver’s license and the registration for the Honda.

Because of the smell of marijuana, the investigation immediately focused on drugs inside the vehicle or on the occupants’ persons. Hinkle was brought to the rear of the Honda and asked by Sergeant Murray if there were any drugs on his person or in the vehicle. He answered in the negative and consented to a search of his person. That search revealed rolling papers and currency.

Sergeant Murray next ordered Miner to exit the vehicle. He did as ordered and also consented to a search. The search of Miner uncovered a small baggie of marijuana. Miner was immediately placed under arrest for possession of marijuana.

The appellant also was asked to exit the Honda. He complied. Officer Webster inquired whether he had anything illegal in his possession. The appellant responded in the negative.

He then consented to a search of his person. No drugs or paraphernalia were recovered in that search. Officer Webster proceeded to search the Honda. Underneath the front passenger seat he recovered a white plastic bag that contained five individually wrapped baggies of marijuana.

In Officer Webster’s words, the white bag was located, “[jjust under the rim of the seat. If [the appellant is] sitting in the seat, if you just reach your hand under, I guess right where normally the adjustments are, it’s right under there in the front portion of the seat.” In other words, the white plastic bag was found directly under the appellant’s seat, on the floor of the car near the edge of the seat, in the area ⁴⁶⁸ immediately behind and next to where the appellant’s legs had been when he was seated. The white plastic bag was opaque, and therefore had to be opened to see what was inside. None of the occupants of the vehicle claimed ownership of the white bag of marijuana at the time of the stop.

As noted above, the appellant and Hinkle were arrested and charged with possession of marijuana with intent to distribute and simple possession. 3 Miner was arrested and charged with simple possession of the marijuana found on his person. At the police station, Officer Webster interviewed Miner and Hinkle. Miner told the officer he did not know how the white bag of marijuana got under the front passenger seat of the car. Hinkle told Officer Webster that the white bag of marijuana was not in the car until the appellant and Miner got in the car.

Also, Hinkle told Officer Webster, “Brad [the appellant] has told me he sells dope.” Hinkle gave this information in written statement form, but refused to sign it. Hinkle’s statement was admitted at trial for impeachment purposes only. Before trial, Hinkle gave the appellant’s counsel an affidavit in which he attested that the appellant was not aware of the white bag of marijuana underneath the seat prior to its seizure by the police; that the marijuana was in the car before the appellant entered it; and that he never told the appellant that the marijuana was there. He also attested that, sometime after their arrests, he wrote a note to the appellant’s defense counsel (attached to the affidavit), admitting that the marijuana was his.

Also as noted above, before trial, Hinkle pleaded guilty to the lesser charge of simple possession of the marijuana in the ⁴⁶⁹ white bag and the State nol prossed the possession with intent to distribute charge against him. Miner’s trial testimony was consistent with what he told Officer Webster on the night of the arrest. Miner said he did not know the white bag of marijuana was in the car, did not put it there, and did not see anyone else put it there. He first learned of its presence when the police removed it from the car.

Hinkle testified at trial that the white bag of marijuana belonged to him and its presence in the car was unknown to the appellant. He said that the day before the stop, someone named Robert, whose last name Hinkle did not know, gave him the bag of marijuana (worth about $500) for free. He put the bag under the front passenger seat of the Honda to take to his house, for personal use (although it was packaged for sale), but forgot about it. The next night, when the traffic stop occurred, he did not tell the police about the bag under the seat because he was scared (not because he had forgotten about it, however).

Many times in his testimony, Hinkle claimed not to remember what had happened on the night of the traffic stop, because of “short term memory loss” due to drug use. Yet, he claimed to remember clearly that the appellant did not know of the presence of the bag of marijuana in the car. Hinkle’s trial testimony was inconsistent with what he told Officer Webster on the night of the stop. At trial, he claimed that he had put the marijuana in the car the night before and only he knew of its presence; in the interview, he said no such thing and instead suggested that the drugs had come into the car with Miner and the appellant.

After holding the case sub curia, the trial court reconvened and made his ruling from the bench. He recited the names of the various witnesses who testified, then said: The physical evidence consisted of five one ounce baggies of marijuana found under the front passenger seat where the defendant was located, the lab report, and the statements of Hinkle and Miner. ⁴⁷⁰ The Court has previously ruled that the stop was legal, search consensual which resulted in the seizure of the five baggies, as I indicated, located right under the front seat where the defendant was located. The evidence would indicate by, again by the totality of the circumstances and proximity of the drugs to the defendant, constructive possession and control. But does it constitute guilty beyond a reasonable doubt?

Without rehashing the whole testimony, the key witness in this case, I think the lynchpin, among other things, was Hinkle. His statements to Officer Webster were contrary to the statements that he made subsequently to that time, which he submitted by note and affidavit through counsel for the defendant, whereby he indicated the drugs were all his, the defendant didn’t even know anything about them. And basically he never told the police at the time he was interrogated they were his. He testified at trial he put it under the front seat, not the driver’s seat, but he had forgotten about it.

It was his, for his own personal use, even th[]ough they were packaged in one ounce baggies, which I guess could be argued could be for personal use and/or distribution. After the arrest he writes this note and affidavit, which is inconsistent with what he told the police officer. Hinkle’s testimony was that the reason he didn’t ... the reason his statement was different at the time he was interrogated by Officer Webster is that he was scared. The Court finds that Hinkle’s testimony is totally non-credible.

His story is too pat. He is obviously torn between loyalty to this defendant and his own self-preservation when he appeared in court in May of this year concerning his own criminal charges. And I find his statements to the police to be the real truth. On the evening in question, [January] 16, 2003, it was a Thursday evening, Friday morning.

It was terrible weather. There was no explanation as to why these people were out and they were riding around hot spots. There was the smell of marijuana. The marijuana was in easy reach of the defendant, easier reach than Hinkle, but it was in Hinkle’s automobile and would ⁴⁷¹ indicate joint constructive possession.

This taken with Hinkle’s incredible testimony, there is evidence to convict the defendant as to both charges beyond a reasonable doubt. DISCUSSION I. Sufficiency of the Evidence The appellant contends the evidence was legally insufficient to support his conviction of possession of marijuana with intent to distribute. His complaint focuses on the possession element of the crime. He argues that there was not a “scintilla of evidence that he was even aware of the existence of the [marijuana], and the driver/owner of the car freely admitted that in fact he was the owner of the drugs.” He maintains that the evidence at most showed “proximity [on his part] to concealed drugs,” which standing alone cannot support a finding of knowledge of the presence and the nature of the contraband.

He emphasizes that the marijuana was in an opaque bag that he could not see from his vantage point as a front seat passenger, because it was tucked under his seat. He also stresses that there was no evidence that he had a possessory interest or right in the Honda. The State responds that the evidence was sufficient to support a reasonable finding, beyond a reasonable doubt, that the appellant had knowledge of the bag of marijuana in the car and was in constructive possession of it. “The standard for appellate review of evidentiary sufficiency is 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.” State v. Smith, 374 Md. 527, 533 , 823 A.2d 664 (2003) (citations omitted). “Weighing the credibility of witnesses and resolving any conflicts in the evidence are tasks proper for the fact finder.” State v. Stanley, 351 Md. 733, 750 , 720 A.2d 323 (1998). In addition, we give “ ‘due regard to the [fact finder’s] finding of facts, its resolution of conflicting ⁴⁷² evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses.’ ” Moye v. State, 369 Md. 2, 12 , 796 A.2d 821 (2002) (quoting McDonald v. State, 347 Md. 452, 474 , 701 A.2d 675 (1997) (quoting State v. Albrecht, 336 Md. 475, 478 , 649 A.2d 336 (1994))). “Although a conviction may rest on circumstantial evidence alone, a conviction may not be sustained on proof amounting only to strong suspicion or mere probability.” White v. State, 363 Md. 150, 162-63 , 767 A.2d 855 (2001) (citation omitted). “ ‘Circumstantial evidence which merely arouses suspicion or leaves room for conjecture is obviously insufficient.

It must do more than raise the possibility or even the probability of guilt. [I]t must ... afford the basis for an inference of guilt beyond a reasonable doubt.’ ” Taylor v. State, 346 Md. 452, 458 , 697 A.2d 462 (1997) (quoting 1 Underhill, Criminal Evidence § 17, at 29 (6th ed. 1973)). Section 5-602 of the Criminal Law Article of the Maryland Code (2002) (“CL”), prohibits the possession with intent to distribute a controlled dangerous substance, which under CL section 5-402(d), includes marijuana. (Simple possession is prohibited under CL section 5-601.) CL section 5-101(u) defines “possess” to mean “to exercise actual or constructive dominion or control over a thing by one or more persons.” To support a conviction for a possessory offense, the “ ‘evidence must show directly or support a rational inference that the accused did in fact exercise some dominion or control over the prohibited drug in the sense contemplated by the statute, i.e., that [the accused] exercised some restraining or directing influence over it.’ ” State v. Leach, 296 Md. 591, 596 , 463 A.2d 872 (1983) (quoting Garrison v. State, 272 Md. 123, 142 , 321 A.2d 767 (1974)). “The accused, in order to be found guilty, must know of both the presence and the general character and illicit nature of the substance. Of course, such knowledge may be proven by circumstantial evidence and by inferences drawn therefrom.” Dawkins v. State, 313 Md. 638, 651 , 547 A.2d 1041 (1988). ⁴⁷³ The following factors are relevant to determining the issue of possession: 1) proximity between the defendant and the contraband, 2) the fact that the contraband was within the view or otherwise within the knowledge of the defendant, 3) ownership or some possessory right in the premises or the automobile in which the contraband is found, or 4) the presence of circumstances from which a reasonable inference could be drawn that the defendant was participating with others in the mutual use and enjoyment of the contraband.

Folk v. State, 11 Md.App. 508, 518 , 275 A.2d 184 (1971); see also Hall v. State, 119 Md.App. 377, 394 , 705 A.2d 50 (1998). In advancing his arguments, the appellant places primary reliance on four cases: White v. State, 363 Md. 150 , 767 A.2d 855 (2001); Taylor v. State, 346 Md. 452 , 697 A.2d 462 (1997); State v. Leach, 296 Md. 591 , 463 A.2d 872 (1983); and Garrison v. State, 272 Md. 123 , 321 A.2d 767 (1974). In each case, the Court of Appeals held the evidence at trial insufficient to support the defendant’s drug possession conviction. We also shall discuss Moye v. State, supra, another case in which the Court struck down a drug possession conviction on sufficiency grounds.

In Garrison , the police executed a search warrant for the house where the defendant lived with her husband. When they entered the house through the rear bedroom, they saw the husband in the adjacent bathroom, attempting to flush more than one hundred bags of heroin down the toilet. In the front bedroom, which had no access to the bathroom, and from which one could not see the bathroom, the police found the defendant in bed. There was no contraband in the front bedroom.

In holding the evidence insufficient to sustain the defendant’s conviction for possession of heroin with intent to distribute, the Court noted: “The seized heroin was not in the plain view of [the defendant], nor was there a juxtaposition between her (in the front bedroom) and the contraband being jettisoned by her husband in the bathroom.” Garrison, supra, ⁴⁷⁴ 272 Md. at 131 , 321 A.2d 767 (citations omitted). In addition, the Court stressed that there was no evidence that the defendant was engaged in selling narcotics or that she was using heroin (it noted that she did not have fresh needle marks on her arms); she made no inculpatory statement; and, although money was found in the front bedroom, it was not connected to the contraband. In Leach , the defendant was convicted of possession of phencyclidine (PCP). While executing a search warrant, the police found five individually wrapped packets of PCP in a closed container in the bedroom of the defendant’s brother’s apartment.

They also found “three smoking pipes, and a green leather case holding drug cutting tools.” Leach, supra, 296 Md. at 594 , 463 A.2d 872 . The defendant had ready access to his brother’s apartment and gave the apartment as his address when he was booked by the police. The Department of Motor Vehicle records listed the apartment as the defendant’s address. The apartment had only one bed, however, and the defendant was not in the apartment when the police executed the search warrant.

The Court of Appeals held that the fact that the defendant’s brother was the occupant of the apartment “precludes inferring that [the defendant] had joint dominion and control with [his brother] over the entire apartment and over everything contained anywhere in it.” Id. at 596 , 463 A.2d 872 . Thus, from the fact that the defendant had access to his brother’s apartment, one could not rationally infer that he knew that there were illegal drugs inside a closed container in his brother’s bedroom. White is another case that involved illegal drugs in a closed container, outside of the defendant’s view, in a place the defendant did not have a possessory interest in or right to; but the space was a car. The defendant was the front seat passenger in a car that was stopped for traveling too closely.

When a consent search of the driver revealed marijuana on his person, officers searched the trunk of the car. There they found a sealed box of pots and pans that also contained 194 ⁴⁷⁵ grams of cocaine. The Court of Appeals found the evidence insufficient to show that the defendant knew of the presence of the cocaine in the trunk and therefore to prove that he was in possession of the cocaine. The appellant relies heavily upon Taylor v. State, supra.

In that case, the defendant had rented a hotel room in Ocean City with four friends. When a police officer entered the room, the defendant was found lying on the floor, with his head turned away from the door, either asleep or feigning sleep. There were clouds of smoke in the room that smelled like marijuana. An officer questioned one of the other occupants of the room, Chris Myers, who retrieved a baggie of marijuana from a carrying bag and told the officer it was his.

When the officer began searching the room, Myers produced a second baggie of marijuana, from another carrying bag. A subsequent search of the room by the police revealed more marijuana in a “multi-colored bag.” Taylor, supra, 346 Md. at 455 , 697 A.2d 462 . Ultimately, the defendant was convicted of possession of the marijuana found in the bags. The Court of Appeals reversed the conviction, holding that a rational inference could not be drawn that the defendant had exercised a restraining or directing influence over marijuana that was concealed in personal carrying bags of another occupant of the room.

Because [the defendant] was in joint rather than exclusive possession of the hotel room, his mere proximity to the contraband found concealed in a travel bag and his presence in a room containing marijuana smoke were insufficient to convict him. Id. at 463 , 697 A.2d 462 . The case at bar is distinguishable from all four of these insufficiency of evidence cases. In Garrison , the contraband was located in a room in the house that could not be seen from the defendant’s location in another room, and was not near her, and there were no facts from which to infer knowledge by her of the presence of drugs in the house.

In Leach and White , the contraband was in a closed container that was not near the defendant and not in a vehicle or residence over ⁴⁷⁶ which the defendant had any right or interest: in Leach , the defendant was not even in the apartment when the container of drugs was found; in White , the container was in the trunk of the car, not visible to the defendant and not in an area close to him or under his control. Here, unlike in those cases, the white bag was not concealed or hidden, or in another room of a house. It was located immediately underneath the appellant’s seat in a small car, in arm’s reach, where it was readily accessible to him but not to the other occupants of the vehicle. In Taylor , the contraband was in carrying bags that were personal to someone other than the defendant.

The lynchpin of the Court’s holding there was that it is not permissible to infer that someone merely occupying a room in which there are carrying bags belonging to another person knows the contents of those personal carrying bags. In this ease, by contrast, the white bag was not personal to someone other than the appellant, to a particular occupant of the car, or to anyone. The kind of evidence that in Taylor negated any reasonable inference of knowledge and possession is not present here. The white bag was an ordinary plastic bag.

See Ford v. State, 37 Md.App. 373, 381 , 377 A.2d 577 (1977) (holding that evidence was sufficient to sustain conviction of front seat passenger of possession with intent to distribute marijuana in paper bag in foot well of Volkswagen, on passenger’s side near gearshift, in presence of marijuana smoke). Officer Webster testified that plastic bags of that very sort commonly are used by drug sellers to carry individually wrapped baggies of drugs. This case also is distinguishable from Moye , the most recent one in which the Court of Appeals has held the evidence at trial legally insufficient to support a drug possession conviction. There, the police went to a house in response to a report that someone there had been attacked with a knife.

When they arrived, several people were in the house: a couple who leased the house; a man who rented the basement apartment from the couple; and the defendant. The couple and the ⁴⁷⁷ renter exited the house soon after the police arrived. The police saw the defendant moving about the first floor of the house. He did not respond to requests that he exit.

The police then saw the defendant looking out a basement window. Several minutes later, the defendant exited the house from a door leading out of the rented basement area. The police arrested the defendant and then entered the basement. There they found three open or partially open drawers containing several small bags of marijuana, a small digital scale with a white substance on it, and a dinner plate upon which there was a razor blade and white residue.

The defendant was charged with drug possession crimes, and was convicted. In holding the evidence insufficient to support the convictions, the Court emphasized that there were no facts showing his position in the basement relative to the drugs, or that they were visible to him, and thus that he had any proximity to them from which knowledge could be inferred. The Court also pointed out that there was no evidence that the defendant had a possessory right or interest in the house, or the basement part of it. The Moye Court focused its sufficiency analysis on whether the contraband was in the defendant’s plain view or line of sight as he was walking through the basement.

It did so after determining that there was no other fact that could support an inference that the defendant knew of the presence of the contraband in an area of a house he merely was passing through, briefly, to exit. Moye , like the other four cases we have discussed, was a mere proximity situation; the defendant simply was seen in an area near the contraband. There were no facts that would permit an inference that he knew of the contraband’s presence, however. In the case at bar, unlike in Moye (and the other cases we have discussed), the facts did not merely show proximity.

The location and nature of the white bag of marijuana, the appellant’s position in the car, the mutual use of marijuana and the marijuana-focused purpose of the trip on the night in question ⁴⁷⁸ permitted an inference that the appellant knew of the marijuana’s presence in the car. During the ride and when the stop was made, the appellant was sitting in the front passenger seat. The bag was found under the front of that seat, which means, before he got out of the car at the officers’ direction, it was between and behind his legs, in a place under his immediate and primary control, by reach — just as the seat adjusting mechanism was under his control. The bag was readily accessible and movable by the appellant, but not by either of the other occupants of the car.

To be sure, the white bag was not in the appellant’s plain view or direct line of sight when he was ordered out of the passenger seat of the Honda. Proof that contraband is in a person’s plain view or line of sight can be sufficient to show the person had knowledge of its presence; it is not necessary to prove knowledge, however. As Judge Moylan explained in Folk, swpra, one of the common threads running through cases holding evidence sufficient to prove joint constructive possession, beyond a reasonable doubt, is “the fact that the contraband was within the view or otherwise within the knowledge of the defendant.” 11 Md.App. at 518 , 275 A.2d 184 (emphasis supplied). By contrast, one of the factors running through cases holding evidence of joint constructive possession insufficient to convict is “the fact that the contraband was secreted away in a hidden place not shown to be within [the defendant’s] gaze or knowledge or in any way under his control.” Id. at 514, 275 A.2d 184 (emphasis supplied).

This second Folk factor (the first being proximity) “concerns the [defendant’s] knowledge, through one sense or another, of the presence of the contraband.” Herbert v. State, 136 Md.App. 458, 466 , 766 A.2d 190 (2001). Seeing something is one way of knowing of its presence. See e.g. Johnson v. State, 142 Md.App. 172, 199 , 788 A.2d 678 (2002) (holding that it was “inconceivable” that the defendant, a passenger in a vehicle, did not know of the presence of contraband on the gearshift, in his plain view and arm’s reach).

Line of sight or ⁴⁷⁹ plain view evidence is not essential to show knowledge of the presence of contraband, however. When an object is out of sight, it is not necessarily “out of mind.” Compare Colin v. State, 101 Md.App. 395, 407 , 646 A.2d 1095 (1994) (holding that circumstantial evidence that the defendant was a passenger in a vehicle in which contraband was hidden in the compartment in a door, reacted nervously when the vehicle was stopped, and gave the officers a false name “add[ed] up to a revealing picture” that “could reasonably be interpreted as showing that he had something to hide and knew where it was to be found”). Also of critical importance here, the evidence permitted an inference that the appellant was engaged in the mutual use and enjoyment of marijuana (the fourth Folk factor) and that the three occupants of the car were engaged in a marijuana-focused common enterprise. There was direct evidence that marijuana was being smoked in a communal fashion in the passenger compartment of the small vehicle, with the windows rolled up.

As Judge Moylan observed in Folk , it is common knowledge that people use marijuana by sharing a single cigarette and inhaling the smoke from the cigarette and the ambient smoke. 11 Md.App. at 519 , 275 A.2d 184 . A fact-finder reasonably could credit that part of the evidence showing that the marijuana blunt was being smoked and shared inside the Honda, discredit the testimony that the appellant merely watched as that happened, and conclude that the appellant was sharing in the marijuana blunt as well. 4 Even if the blunt were not passed to the appellant, however, the evidence showed that he was participating in its use by sitting in the closed, small space and breathing marijuana smoke. Certainly, he knew by his ⁴⁸⁰ senses of sight and smell that marijuana was in the car and was being used. The holding in Taylor does not preclude an inference of mutual use and enjoyment in this case.

In Taylor , the Court of Appeals concluded that one could not reasonably infer, from evidence of the presence of lingering marijuana smoke in the air of a motel room and evidence that some friends of the five occupants of the room had recently smoked marijuana in it, that one of the occupants of the room had used marijuana himself. In this case, the evidence showed that the appellant was inside the passenger compartment of a small car, in which a marijuana blunt was lit, smoked, and shared, from the back seat to front, before his eyes. The drug use was present tense, communal, and open. The facts make reasonable an inference of mutual use and enjoyment of the contraband, whereas in Taylor the facts did not.

In the cases primarily relied upon by the appellant and in Moye , there was no evidence that any defendant was in a group situation in which contraband was being used, and indeed no evidence of drug use at all. 5 In Maryland v. Pringle, 540 U.S. 366, 374 , 124 S.Ct. 795 , 157 L.Ed.2d 769 (2003), the Supreme Court held that police officers had probable cause to believe that a front seat passenger in a car had committed the crime of possession of cocaine, either solely or jointly with the other occupants of the car. The evidence showed there were three men in a small car; it was 3:16 a.m.; there was $763 in cash in the glove compartment, in front of the defendant but not in his view; there were five baggies of cocaine behind the armrest of the back seat, ⁴⁸¹ but accessible to all the occupants; and the men failed to offer any information about the ownership of the cocaine or the money. The Pringle Court observed that automobile passengers “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.” Id. at 373 , 124 S.Ct. 795 (citing Wyoming v. Houghton, 526 U.S. 295, 304-05 , 119 S.Ct. 1297 , 143 L.Ed.2d 408 (1999)). The Court explained that it was “entirely reasonable” for the arresting police officers in Pringle to believe that any or all three of the occupants had knowledge of, and exercised dominion and control over, the cocaine found behind the armrest.

Id. at 372 , 124 S.Ct. 795 . In State v. Suddith, 379 Md. 425 , 842 A.2d 716 (2004), the Court of Appeals held that the observation in Pringle , that car occupants are likely to be involved in a common enterprise, is relevant to a sufficiency of the evidence assessment. Id. at 493 , 842 A.2d 716 . Although the Pringle case addresses probable cause, it nevertheless establishes generally the reasonableness, and hence permissibility, of an inference that people who know each other and are traveling in a car in circumstances indicating drug using or selling activity are operating together, and thus are sharing knowledge of the essentials of their operation.

Here, the circumstances permitted an inference that the three occupants in the Honda were engaged in a marijuana-focused common enterprise. They knew each other; were together in a small car; the driver was making a stop for one of the passengers (the appellant), in a neighborhood where illegal drugs were a serious enough problem to have undercover officers assigned to a trash pulling detail; there was communal marijuana smoking inside the car; the driver had rolling papers; and the back seat passenger had marijuana on his person. The testimony of Hinkle and Officer Webster showed that there was a period of several minutes when Hinkle was driving the Honda, marijuana was being smoked in it, and he ⁴⁸² became aware that the car was being followed by a police cruiser. A reasonable fact-finder could infer from this evidence that Hinkle told the other occupants of the car, with whom he was engaged in the marijuana-focused common enterprise, that the police were coming up behind them, and that there was a window of opportunity for the three to hide whatever marijuana was in the car.

Again, the group was in a small car with marijuana being passed around and smoked. It would have been obvious to each of them that, if they were stopped by the police, the odor of marijuana would alert any officer