Pearson v. State

⁵³³ EYLER, Judge. Appellant, Reginald X. Pearson, was convicted in the Circuit Court for Anne Arundel County (Joseph P. Manck, J.) of possession of marijuana with intent to distribute and possession of marijuana. After merging the two offenses, the circuit court sentenced appellant to three years imprisonment, all suspended, and three years supervised probation. Prior to trial, appellant filed a motion to suppress evidence obtained during a search of his apartment on the ground that the warrant was defective.

Appellant appeals to this Court and asks (1) whether the evidence was sufficient to sustain his convictions, (2) whether the search warrant was defective, and (3) whether the court erred in failing to grant appellant an appropriate hearing. Finding no error, we affirm the judgment of the circuit court. Facts A. The Search Warrant The warrant used in the search of appellant’s apartment 1 (the “second warrant”) was admitted during the suppression hearing along with an application and supporting affidavit. That warrant recited that on Saturday, February 28,1998, the affiants, Detectives Daniel R. Rodriguez and Gregory E. Spriggs of the Anne Arundel County Police Department, were contacted by Detective Mark Price of the Maryland State Police Narcotics Task Force regarding a suspected drug parcel discovered by Detective Price during parcel interdiction at the Federal Express Warehouse in Beltsville, Maryland.

Detective Price stated that he observed a parcel marked “Priority Saturday” and addressed to “H and H inc, 718 Lindengrove Place # 101, Odenton, MD 21113.” The parcel had been mailed from Las Vegas, Nevada, and the postage had been paid in cash by the sender. Detective Price had enlisted the services of the Prince George’s County Police Department and ⁵³⁴ a trained drug dog to check the package. The dog began biting and scratching at the package, signaling to Detective Price that the package contained a controlled dangerous substance. Detective Price then obtained a search and seizure warrant (the “first warrant”) from a Prince George’s County judge, conducted a field test of the contents of the package, and determined that the package contained approximately 60 pounds of marijuana.

In the affidavit, Detectives Rodriguez and Spriggs further stated that they met with Detective Price, took the package into custody, noticed that it was addressed to “H and H ine” at 718 Lindengrove Place # 101, Odenton, MD 21113, and set up a controlled delivery of the package to that address. The detectives stated that the package remained in the custody of the Anne Arundel County Police until it was delivered and taken inside appellant’s apartment. B. The Suppression Hearing and Trial Detective Rodriguez testified at the suppression hearing that he and Detective Spriggs prepared a warrant application and an affidavit, and took the pre-typed application and affidavit to the residence of Judge Ronald A. Silkworth at approximately 3:30 p.m. on Saturday, February 28, 1998. The affidavit recited facts as they were expected to develop but that, in part, had not yet occurred.

Specifically, when the detectives arrived at the judge’s residence at 3:30 p.m. the delivery of the package to appellant’s Odenton address had not yet taken place, although the detectives stated in the affidavit that it had been delivered. The detectives waited outside of the judge’s residence until they received radio confirmation from another member of the Anne Arundel County Drug Interdiction Unit that the package had been accepted into appellant’s apartment. Detectives Rodriguez and Spriggs then presented the application and affidavit to Judge Silkworth, and once the warrant was signed, they radioed that fact to the detectives outside of appellant’s apartment, who immediately executed the warrant. ⁵³⁵ Detective Andrew Barnett of the Anne Arundel County Police Department testified at the suppression hearing that he delivered the box of marijuana to appellant’s apartment. The box had a hole in one side, according to Detective Rodriguez, that was created by the drug dog.

Detective Barnett wore a Federal Express uniform and drove what appeared to be a Federal Express van. The detective knocked, and appellant’s roommate answered the door. Detective Barnett said he was from Federal Express and had a package for “H & H,” and presented a sheet for signature. Appellant’s roommate signed appellant’s name on the sheet as appellant entered the room.

Detective Barnett engaged in small talk with both men. At some point, Detective Barnett commented on the fact that the delivery was late. Once the delivery was complete, the detective drove away in the van and radioed to other officers on the scene a description of the apartment and the number of people inside. Appellant testified that, after the package was delivered, he realized that it was delivered to him by mistake and went outside to try to catch the driver.

He also stated that he tried to stop the driver of the van by following the van and making gestures toward it as it was leaving and that he attempted to call Federal Express on the phone. Detective Barnett testified that he did not see anyone come out of the apartment after he left it. According to an investigative report by Detective Todd Young, who was engaged in surveillance of appellant’s apartment during the delivery, appellant came out of the apartment after Detective Barnett left and apparently tried to catch Detective Barnett as he drove away. At trial, Detective Young testified that he did not see appellant make gestures toward the van.

In any event, appellant returned to his apartment without getting Detective Barnett’s attention. Appellant’s motion to suppress was denied. The trial testimony was essentially the same as above. Several members of the Anne Arundel County Police Department, including Detectives Young and Barnett, searched the apartment.

The package of marijuana was discovered unopened near the front door. In addition to the package, the ⁵³⁶ officers seized five boxes of plastic baggies, two boxes of plastic wrap, $190 cash, and a large digital scale that was recovered from beneath appellant’s bed. Additionally, Detective Rodriguez testified at trial that marijuana is typically packaged for street use in plastic baggies, and Detective Young testified that, based on his training and experience, the type of scale that was discovered under appellant’s bed was a type used to package large amounts of marijuana and that 60 pounds of marijuana indicated an intent to distribute. After a bench trial, the circuit court found appellant guilty.

Discussion 1. Appellant first contends that the evidence was insufficient to sustain his convictions. In analyzing the sufficiency of the evidence admitted at a bench trial to sustain a defendant’s convictions, “we ‘review the case on both the law and the evidence,’ but will not ‘set aside the judgement ... on the evidence unless clearly erroneous,’ giving due regard to the trial court’s opportunity to judge the credibility of the witnesses.” Wilson v. State, 319 Md. 530, 535 , 573 A.2d 831 (1990) (quoting Rule 8-131(c)). We must view the evidence in the light most favorable to the State and determine “whether the evidence shows directly or supports a rational inference of the facts to be proved, from which the trier of fact could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged.” Wilson, 319 Md. at 535-36 , 573 A.2d 831 .

See also Taylor v. State, 346 Md. 452, 457 , 697 A.2d 462 (1997); Stouffer v. State, 118 Md.App. 590, 605 , 703 A.2d 861 (1997), rev’d in part on other grounds, 352 Md. 97 , 721 A.2d 207 (1998). Appellant argues that there was no evidence that he exercised dominion or control over the marijuana, as required in drug offenses based on possession, and that the circumstantial evidence is equally consistent with a hypothesis of innocence. The circuit court found as follows: ⁵³⁷ I am not going to rehash all of the testimony in the case, because I already did that. What I am going to do is to— and what I did in there, in the room, was to make a list of things that I looked at in figuring out how I was going to come to a verdict in this case.

On the State’s side we have an inordinate amount of marijuana that is hit upon by a dog, it is actually bit into. The box is repaired as best it can. It comes to the Defendant’s apartment, some four or five hours — maybe three and one-half to four hours after the time when it should have been delivered. Actually it is longer than that.

It is delivered to the Defendant’s apartment, not to [appellant’s roommate’s] apartment, but to the Defendant’s apartment. There is testimony that the only person on the lease is the Defendant. The box is delivered by an undercover police officer, [appellant’s roommate] chats with the undercover police officer as does the Defendant who leans in — I am not exactly sure what that means when the police officer said “leans in”, but leans in and exchanges some pleasantries with the Federal Express undercover agent at that point. Why nothing is said at that point as to “Wait a minute, what is this H & H Corporation?

This isn’t my box. Why is it here?” I don’t know, but nothing is said. The box then is inside right by the door. Both [appellant’s roommate] and Mr. Pearson are presumably there, that is what the testimony was.

When the search warrant goes down the police find large baggies, an inordinate amount of large baggies which the Court can only surmise are being used to package. And, as the police officer says, large quantities of marijuana. Certainly, 50 or 60 pounds is a large quantity of marijuana, even when it is split up. That goes for the Saran wrap as well.

Why is there so much Saran wrap in this apartment, other than to wrap the marijuana. The Defendant — also in his room is found the scale which is said, and it is in evidence, that he found it on ⁵³⁸ entering his apartment. The State has a witness that says look that apartment was not furnished, there was nothing in the apartment, albeit at times the doors were left unlocked for the workmen to go in. The Defendant does not state anything to the Federal Express driver at the time of the delivery, but within a minute or two does run outside to get — appears to attempt to get the attention of the Federal Express driver.

The Federal Express driver doesn’t see him, but I think it was Detective Young who testified that the man did appear to be attempting to get to the Federal Express driver. With no success he goes back in the house and comes back out with a telephone. I guess if I have to point — with circumstantial evidence it builds on its self, and it builds and it builds. It seems to me that the circumstantial evidence of the amount, of the weight of the marijuana; the box -with only the Defendant’s address on it; the Defendant not saying anything to the driver when the box is delivered; the Defendant having a scale which is a larger scale used, which seems to feed into the issue of the distribution of marijuana; the large amount of baggies that are used in the marijuana sale and division of; and the Saran wrap as well.

Realizing, circumstantially, that there was a bite out of the box and then the charging out of the apartment to find the driver just leads me to candidly — the inescapable conclusion that the Defendant is guilty as charged, beyond a reasonable doubt. I am going to enter and find him guilty to the charge of possession. The Court does find that this amount of marijuana clearly was not for personal use and is clearly for distribution. “Knowledge” is an element of the offense of possession of a controlled dangerous substance. Dawkins v. State, 313 Md. 638, 651 , 547 A.2d 1041 (1988).

To prove possession of a controlled substance, the State must show in part that the accused knew “of both the presence and the general character ⁵³⁹ or illicit nature of the substance.” Dawkins, 313 Md. at 651 , 547 A.2d 1041 . This knowledge, of course, may be proven through circumstantial evidence. See Taylor, 346 Md. at 458 , 697 A.2d 462 ; Wilson, 319 Md. at 536 , 573 A.2d 831 ; Dawkins, 313 Md. at 651 , 547 A.2d 1041 . Further, a conviction may be based on circumstantial evidence alone but “cannot be sustained on proof amounting only to strong suspicion or mere probability.” Taylor, 346 Md. at 458 , 697 A.2d 462 .

The parties to the present case have not provided this Court with a published opinion of a Maryland appellate court that is instructive on the precise issue for decision here. In McDonald v. State, 347 Md. 452 , 701 A.2d 675 (1997), the Court of Appeals considered whether the evidence presented in the trial of that case was sufficient to sustain the defendant’s convictions for possession of a controlled dangerous substance and for simple possession. McDonald involved a controlled delivery of a package containing marijuana to a defendant, followed closely by an entry and search of the premises by police. McDonald, 347 Md. at 460, 474-75 , 701 A.2d 675 .

In McDonald , however, the defendant had personally signed for the package and was found standing over the exposed package of marijuana when the house was searched thirty minutes after the delivery. Id. at 474-75 , 701 A.2d 675 . These facts, although apparently central to the decision of the McDonald majority to affirm the convictions in that case, serve to distinguish McDonald from the case at bar. The trial testimony in the present case revealed that appellant did not sign for the package and that, when the apartment was searched, the package remained unopened near the front door.

While the Court in McDonald was able to affirm the sufficiency determination with little analysis of the knowledge requirement, we are presented with a closer set of facts in the instant case. Courts of other states generally have concluded that the mere fact that a package containing a controlled substance is received in a controlled delivery or through the mail is insufficient evidence of knowledge of the illicit contents of the ⁵⁴⁰ package to sustain a conviction for possession. See Walker v. State, 356 So.2d 674, 676 (Ala.Crim.App.1977); People v. Larsen, 180 Colo. 140 , 503 P.2d 343, 345 (1972) (en banc); State v. Parent, 8 Conn.App. 469 , 513 A.2d 725, 728 (1986); State v. Gomez, 126 Idaho 700 , 889 P.2d 729, 736 (App.1994); People v. Ackerman, 2 Ill.App.3d 903, 274 N.E.2d 125, 127 (1971); Commonwealth v. Sheline, 391 Mass. 279 , 461 N.E.2d 1197, 1202 (1984); Commonwealth v. Aguiar, 370 Mass. 490 , 350 N.E.2d 436, 442 (1976); State v. Richards, 155 N.J.Super. 106 , 382 A.2d 407, 411 (App.Div.1978); Commonwealth v. Rambo, 488 Pa. 334 , 412 A.2d 535, 537-38 (1980); Commonwealth v. Sterling, 241 Pa.Super. 411 , 361 A.2d 799, 802 (1976); Barber v. State, 757 S.W.2d 83, 86 (Tex.App.1988, pet.ref'd). Where knowledge is an element of the crime of possession, additional circumstantial evidence of knowledge is required.

Compare People v. Larsen, 180 Colo. 140 , 503 P.2d 343, 344-45 (1972) (en banc) (evidence that defendant possessed unopened package of marijuana for brief period of time, and that package was not addressed to or opened by her, held insufficient as a matter of law) with People v. Hankin, 179 Colo. 70 , 498 P.2d 1116, 1118 (1972) (en banc) (evidence that defendant had piece of paper in his pocket with identical name and address of sender as printed on package of narcotics, and that defendant had flakes of marijuana in his pocket, held sufficient to sustain conviction for possession of narcotics); compare People v. Ackerman, 2 Ill.App.3d 903, 274 N.E.2d 125, 126-27 (1971) (evidence that defendant accepted package containing LSD that was addressed to another, but sent “c/o” the defendant, and that defendant placed unopened package under his arm and