United States v. Ambrose

GREENE, J. We have before us two questions of law certified by the United States District Court for the District of Maryland pursuant to the Maryland Uniform Certification of Questions of Law Act, Md.Code (1974, 2006 Repl.Vol.), §§ 12-601 to 12-613 of the Courts and Judicial Proceedings Article. The questions arise from an appeal of a conviction in the United States Magistrate Court of driving a motor vehicle while the privilege to drive is suspended, a violation of Md.Code (1977, 2002 Repl.Vol.), § 16-303(c) of the Transportation Article. In his appeal before the District Court, the defendant, Julian M. Ambrose, disputes the magistrate judge’s interpretation of the modifying phrase “used by the public” in two statutory provisions defining key terms of § 16-303(c): the definition of “highway,” § 11-127, and the private property provision, § 21-101.1(b)(l). Md.Code (1977, 2002 Repl.Vol.), Transportation Article.

The District Court has certified the following questions for our consideration: I. Do the terms “used by the public” contained in the definition of “highway” in § 11-127 and in the private roads provision of § 21—101.1(b)(1) of the Transportation Article of the Maryland Code require the unrestricted right of the public to the use of the highway or private property, as opposed to the fact of use of a highway or private property by the public?

II

If the terms “used by the public” as contained in the foregoing sections of the Transportation Article require that the public has a right, as opposed to the fact, of use, what level of restrictions, if any, may be imposed on the public before a highway or private property loses its character as one “used by the public?” ⁴²⁷ In answering the first question, we hold that the phrase “used by the public” contained in the definition of “highway” in § 11-127 and in the private roadway/property provision of § 21—101.1(b)(1) of the Maryland Transportation Article does not require proof of an unrestricted right of the public to use the pertinent highway or private property where the offense allegedly occurred; rather, the proper inquiry involves a factual determination as to the character of the use of the highway or private roadway/property by the public, regardless of the restrictions placed on the public’s access or use. Because of our resolution of question I, we need not address the merits of question II. BACKGROUND A. Factual and Procedural History On June 27, 2005, at approximately 9:15 a.m., Mr. Ambrose was cited for a violation of § 16-303(c) of the Maryland Transportation Article, driving a motor vehicle while his privilege to drive was suspended, as a result of a routine identification check at the Old Farm Road Gate of Fort Detrick. When Mr. Ambrose and his vehicle approached the Fort Detrick entry gate, the civilian security guard assigned to the checkpoint stopped Mr. Ambrose’s vehicle and requested to see Mr. Ambrose’s identification.

Upon receiving Mr. Ambrose’s identification, the security guard was unable to determine a date on the card. The security guard then requested the assistance of Officer Thomas S. Plummer, a police officer with the United States Department of Defense, to verify Mr. Ambrose’s identification. While waiting for Officer Plummer to arrive, the security guard asked Mr. Ambrose to move his vehicle to a designated area near the security gate to avoid blocking the traffic lanes leading to Fort Detrick. Officer Plummer responded to the gate and found Mr. Ambrose in the driver’s seat of the vehicle.

Officer Plummer inspected Mr. Ambrose’s identification and, finding “the date on it was a little obscure [and] was kind of hard to read,” ran ⁴²⁸ Mr. Ambrose’s identification through the National Crime Information Center database and the Maryland Motor Vehicle Administration database. The results of the database search indicated that Mr. Ambrose’s driving privileges were suspended by the State of Maryland. Accordingly, Officer Plummer “took Mr. Ambrose into custody, brought him back to the station, [and] ... gave him [a] ticket.” Mr. Ambrose was charged, under the Assimilated Crimes Act, 18 U.S.C. § 13 (a), with driving on a suspended license in violation of § 16-303(c) of the Maryland Transportation Article. 1 Officer Plummer then released Mr. Ambrose from police custody. A trial on the charge of driving while suspended was held before a United States magistrate judge on April 18, 2006, and September 19, 2006.

At both the close of the Government’s case and the trial, Mr. Ambrose moved for judgment of acquittal, which the magistrate judge denied. The judge then found Mr. Ambrose guilty of the offense. Mr. Ambrose received 18 months of supervised probation with the special condition that he not drive without a valid license, a $725.00 fine, and a $25 special assessment. On September 21, 2006, ⁴²⁹ Mr. Ambrose appealed his conviction to the United States District Court for the District of Maryland.

On March 26, 2007, the United States District Court for the District of Maryland held a hearing on the magistrate judge’s decision. On June 15, 2007, the district court judge certified the two above-stated questions of law to this Court pursuant to the Maryland Uniform Certification of Questions of Law Act. B. Fort Detrick Fort Detrick is a research laboratory-oriented military installation under the control of the United States Army. The installation is home to several research laboratories and support buildings.

The post also contains housing for some employees, recreational facilities, restaurants, stores, park areas, and a community activity center. The installation is considered a restricted area and is not open to the public. Indeed, the entire perimeter of the installation is protected by a fence, which directs all entry onto the installation through four security gates. A warning sign is posted on each gate declaring the installation’s restrictive nature: WARNING RESTRICTED AREA THIS INSTALLATION HAS BEEN DECLARED A RESTRICTED AREA BY THE AUTHORITY OF THE COMMANDING OFFICER, IN ACCORDANCE WITH THE PROVISIONS OF THE DIRECTIVE ISSUED BY THE SECRETARY OF DEFENSE ON 20 AUGUST 1954, PURSUANT TO THE PROVISIONS OF SECTION 21, INTERNAL SECURITY ACT OF 1950.

UNAUTHORIZED ENTRY IS PROHIBITED. ALL PERSONS AND VEHICLES ENTERING HEREIN ARE LIABLE TO SEARCH. PHOTOGRAPHING OR MAKING ⁴³⁰ NOTES, DRAWINGS, MAPS OR GRAPHIC REPRESENTATIONS OF THIS AREA OR ITS ACTIVITIES ARE PROHIBITED UNLESS SPECIFICALLY AUTHORIZED BY THE COMMANDER. ANY SUCH MATERIAL FOUND IN POSSESSION OF UNAUTHORIZED PERSONS WILL BE CONFISCATED.

Members of the general public, who are not employees of Fort Detrick, wishing to gain access to the installation are required to report to the 7th Street Gate. When a vehicle not displaying a Department of Defense decal approaches a security gate, the security guard assigned to the gate directs the vehicle to a security lane, where the guard requests the visitor’s identification and reason for entry. Any vehicle entering the installation is also subject to a search by the security guard. If the security guard deems the reason for entry acceptable, the visitor(s) may proceed onto the installation.

Otherwise, individuals without proper identification and a valid purpose are refused entry. C. The Maryland Transportation Article At issue in the instant case is § 16-303(c) of the Maryland Transportation Article, which provides: (c) Suspended licenses generally.—A person may not drive a motor vehicle on any highway or on any property specified in § 21-101.1 of this article while the person’s license or privilege to drive is suspended in this State. The Code defines “highways” as “the entire width between the boundary lines of any way or thoroughfare of which any part is used by the public for vehicular travel, whether or not the way or thoroughfare has been dedicated to the public and accepted by any proper authority.” 2 Md.Code (1977, 2002 RepLVol.), § 11-127 of the Transportation Article. ⁴³¹ In addition, Section 21-101.1, entitled “Scope of title,” reads as follows: (a) In general.—The provisions of this title relating to the driving of vehicles refer only to the driving of vehicles on highways, except: (1) As provided in subsection (b) of the section; and (2) Where a different or additional place specifically is provided for. (b) Applicability to private property.—(1) A person may not drive a motor vehicle in violation of any provision of this title on any private property that is used by the public in general, or in Calvert County, on any private road located within a residential subdivision or community.

(2) A person may not drive a motor vehicle in violation of any provision of this title on any property that is owned by or under the control of this State, or any of its political subdivisions, county boards of education, or community colleges and that is open to vehicular traffic and used by the public in general. (3) Any person who violates any provision of this subsection is in violation of the law to the same extent and is ⁴³² subject to the same penalty as if the motor vehicle were driven on a highway. Md.Code (1977, 2002 RepLVol.). DISCUSSION Parties’ Contentions The Government contends that the phrase “used by the public” contained in the definition of “highway” (§ 11-127) as well as in the private property provision (§ 21-101.1(b)(l)) requires only that the public in fact use the roadway/property in order for said roadway/property to be subject to the Transportation Article.

Specifically, the Government argues that the phrase “used by the public” is clear and unambiguous, and it does not require lengthy or complicated analysis by this Court. Rather, the Government urges that this Court need only look to the plain language to conclude that the words “used by the public” do not reference a requirement that the public have some right to use a roadway. The Government states: This logical understanding of the plain language of the statutes is buttressed by the fact that the phrase “used by the public” in both statutes does not distinguish between the use of a roadway by the public by right and use of a roadway of the public by permission of the owner. Absent such a distinction in the statutory text, there is no basis for assuming that the phrase “used by the public” means “used by the public by right.” Instead, the plain reading of the statutes is that there need only be a showing that the roadway is, in fact, used by the public, even if only with the permission of the owner.

The Government then directs the Court’s attention to the entirety of the Transportation Article, asserting that “it becomes even clearer that the actual use of the roadway by the public ... is the linchpin of the phrase in question.” Pointing to Section § 21-101.1(b)(l), the Government argues that this section “establishes that the traffic laws apply not only to highways, but also on property that is privately owned but ⁴³³ used by the public;” therefore, “the actual use of the roadway, not the public’s unrestricted right to use a roadway, is the crucial and necessary inquiry.” To utilize the rights-based test for this inquiry, the Government contends, is to render § 21—101.1(b)(1) without force. In addition, the Government contends that this Court should not rely on earlier Court of Special Appeals’s decisions, namely, Walmsley v. State, 35 Md.App. 148, 370 A.2d 107 (1977) and Akins v. State, 35 Md.App. 155, 370 A.2d 111 (1977), in answering this question because the Maryland General Assembly amended the statutory provision in question in 1978 to broaden its scope, thereby abrogating those decisions. The Government asserts that the legislative history of the 1978 amendment shows that “the change in the law was, in fact, specifically designed to properly address the ‘loophole’ cited in” several Court of Special Appeals decisions. Lastly, the government argues that we should also not base our decision on Locklear v. State, 94 MdApp. 39, 614 A.2d 1338 (1992), because “the Court of Special Appealsfs decision] was ultimately fact-driven and did not turn on the ‘right to travel’ test cited in its opinion.” Ambrose counters, asserting that “the phrase ‘used by the public’ ... requires that the general public have an unrestricted right to use the pertinent highway or private property in question, meaning that the roadway or property must be open and available for use by all members of the public.” Ambrose states: “Interpreting these statutes to require such a right of access is not only consistent with the natural and ordinary meaning of the word ‘public,’ but is also necessary to avoid rendering statutory language superfluous.” Ambrose then argues that the common definitions of the word “public” “suggest that ... a roadway or private property must be available for use by all citizens of the [S]tate;” therefore, “it is appropriate to conclude that a roadway or private property is ‘used by the public’ when the road or property is open and available for use by all members of the public.” Ambrose points out that not every road available to the public is a public road; otherwise the statutory language contained in ⁴³⁴ Section 21-101(n), “private road or driveway” would become superfluous.

Analysis These questions are matters of first impression for this Court as we have never addressed Sections 11-127 and 21-101.1(b)(l)’s requirement that the highway or private property be “used by the public.” This question, however, has been before the Court of Special Appeals on three separate occasions. See Locklear v. State, 94 Md.App. 39 , 614 A.2d 1338 (1992); Akins v. State, 35 Md.App. 155 , 370 A.2d 111 (1977); Walmsley v. State, 35 Md.App. 148 , 370 A.2d 107 (1977). In two of the three cases, Walmsley and Akins , the Court of Special Appeals overturned the defendants’ convictions by interpreting the “used by the public” element of “highway” to depend solely on the right of the general public to use the roadway. 3 We explain. In Walmsley , the defendant appealed his conviction of driving while his license was revoked, asserting that the parking lot in which he was cited was not a public highway under state law.

Walmsley, 35 Md.App. at 150 , 370 A.2d at 108 . The ⁴³⁵ Court of Special Appeals agreed with Mr. Walmsley’s position, holding that “the test to be applied is the right of the public to travel on the road, driveway, or parking lot, and not the actual exercise of that right.” Id. at 152 , 370 A.2d at 109. Applying the facts of the case to the newly-adopted test, the court stated: In the instant case, it cannot be questioned but that George’s Tavern could have limited the driveway and parking lot to its employees or to its patrons. The public, other than business invitees, had no right to enter upon the driveway or to park their vehicles.

It is obvious that driveways and parking lots are not “public” in the sense of the use by all vehicular traffic as a matter of right. We infer that the driveway and parking lot are maintained solely for the convenience of the patrons of the tavern and as such are subject to almost limitless regulation by the owners of the property, to the point that both the driveway and the parking area could be completely eliminated at whim. Thus, the private parking and driveway do not fall within the scope of “used by the public for purposes of vehicular travel,” Md.Ann.Code art. 66 1/2, [§ ] 1-132. It follows that operating a motor vehicle on a private parking lot, road, or driveway while a license is canceled, suspended, refused, or revoked is not proscribed by the present Maryland motor vehicle code, and Walmsley’s conviction under [§ ] 6-303 of Article 66 1/2 was wrong.

Id. at 154, 370 A.2d at 110. In Akins , the intermediate appellate court’s companion case to Walmsley , the defendant was convicted of driving at a time when his license was revoked after being observed driving on a shopping center parking lot. The defendant appealed, claiming there was insufficient evidence to support his conviction for driving on a public highway at a time when his license was revoked. Akins, 35 Md.App. at 155-56 , 370 A.2d at 111 .

The court agreed and reversed the defendant’s conviction, emphasizing the rule to be applied in cases regarding a parking area is “that a parking area and its roadways within a shopping center are considered to be private because the right ⁴³⁶ to use them is limited to those persons who have implied permission to do business with the owner, and that thé owner retains the right to exclude anyone at anytime.” Id. at 157 , 370 A.2d at 112. The court then stated: The use of the parking lot and exit areas in this case was entirely for the convenience of the customers of the owners of the stores in the shopping center. The owner of the center had an absolute right to control the traffic patterns for the use of the areas and could, and undoubtedly did, promulgate rules and regulations as to the manner in which the area could be used. At his discretion the area could be closed or opened as the owner saw fit.

It is clear, then, that the area in which the [defendant] operated his vehicle was not “used by the public for purposes of vehicular travel” within the meaning of Code art. 66 1/2, § 1-132. We hold that operating .a motor vehicle on a shopping center parking lot, or any other private parking lot, road, or driveway while a license is canceled, refused, suspended, or revoked is not a violation under § 6-303 of art. 66 1/2 and, therefore, reverse. Id. at 158, 370 A.2d at 112. In essence, the Court of Special Appeals’s cases applied the test of whether there is an unrestricted right of the public to “travel on the road, driveway, or parking lot.” See Walmsley, 35 Md.App. at 152 , 370 A.2d at 109 .

But, as the Government explained in its argument, the General Assembly amended the statutory language contained in § 16-303 4 in order to expand ⁴³⁷ its scope to include private property. See 1978 Md. Laws, Chap. 34. It is clear from the legislative history of House Bill 170 that the General Assembly amended § 16-303 in direct response to the Walmsley and Akins decisions, in order to close the perceived gap in the law and apply § 16-303 to privately-owned property that is used significantly by the public. See 1978 Md. Laws, Chap. 34. 5 The bill file to House Bill 170, for example, reveals a January 17, 1978, letter from William T.S. Bricker, Deputy Administrator of the Maryland Motor Vehicle Administration, to Delegate Joseph Owens, then-Chairman of the House Judiciary