White v. State

• Decision Date: 05 March 2001
• Docket Number: No. 70,70
• Citation: 363 Md. 150,767 A.2d 855
• Parties: Sean WHITE, v. STATE of Maryland.
• Court: Maryland Court of Appeals

767 A.2d 855

363 Md. 150

Sean WHITE, v. STATE of Maryland.

No. 70, Sept. Term, 2000.

Court of Appeals of Maryland.

March 5, 2001.

William P. Robinson, Jr., Robinson and Anderson, Norfolk, VA; Bruce Anderson, Salisbury, on brief, for petitioner.

Kathryn Grill Graeff, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and LAWRENCE F. RODOWSKY (retired, specially assigned), JJ.

HARRELL, Judge.

Charged with importation of cocaine (count one), possession of cocaine with the intent to distribute (count two), possession of cocaine (count three), conspiracy to import cocaine (count four), conspiracy to possess cocaine with the intent to distribute (count five), and possession of paraphernalia (count six), Sean Julian White (Petitioner) was convicted by a jury in the Circuit Court for Wicomico County of the crimes charged in counts one through five.¹ On 29 September 1999, Petitioner appealed to the Court of Special Appeals, which affirmed the lower court's judgments. White v. State, 132 Md.App. 640, 753 A.2d 578 (2000). We granted White's petition for a writ of certiorari. White v. State, 360 Md. 485, 759 A.2d 230 (2000).

The petition for certiorari presented the following questions:

1. Did the Court of Special Appeals err in determining that Petitioner could not avail himself of an unconstitutional traffic stop, even though Petitioner, as a passenger in the vehicle, did not have standing to question the search of the vehicle itself?

2. Did the Court of Special Appeals err in determining that the evidence was legally sufficient to establish constructive possession of the cocaine found in the trunk of the vehicle in which he was a passenger?

3. Did the Court of Special Appeals err in determining that the evidence was legally sufficient to establish that Petitioner was guilty of possession of cocaine with intent to distribute, conspiracy to import cocaine into the State of Maryland, and conspiracy to possess cocaine with intent to distribute[?]²

We shall answer a question embedded in issues two and three in the affirmative and reverse. We shall not reach any of Petitioner's other issues.

I.

While on routine patrol the evening of 21 January 1999, two Maryland State troopers, Sergeant Michael Lewis and Corporal Gary Bromwell, observed three vehicles traveling southbound on Route 13 in Wicomico County, Maryland, approximately five miles from the Delaware state line, in what appeared to the troopers to be a procession. The troopers stopped the middle and end vehicles for following too closely for safe operation during inclement weather.³ The troopers each attended to an automobile: Corporal Bromwell gave the driver of the end vehicle a warning and allowed him to continue on his way. The present case arises from the series of events that occurred during the interaction of mainly Sergeant Lewis with the driver, Kendrick Charity, Petitioner's co-defendant, and the passenger, Sean Julian White (Petitioner), of the middle automobile.

After informing Charity why he was stopped, Lewis requested his driver's license and vehicle registration. Charity provided a North Carolina license and registration.⁴ Observing that Petitioner was sitting in the front passenger seat, but not wearing a seat belt, Lewis asked Petitioner for his driver's license as well.⁵ Petitioner proffered to Lewis a New York driver's license. During this interaction, Lewis noticed a Chesapeake Bay Bridge tunnel toll receipt, with a date of 20 January 1999 and a time of 20:09 hours (8:09 PM), on the center console, and an overwhelming pine scent emitted by dozens⁶ of pine tree-shaped air fresheners hanging from the car's rear view mirror. Testifying that he "stood near the driver's door for a very short period because [he] was literally having difficulty talking because of the overwhelming odor," Lewis asked Charity to step to the rear of the car. Once there, Lewis proceeded to question him about his immediate journey. Charity indicated that he and Petitioner had just spent a week "up north" and were on their way to Charlotte, North Carolina. Observing that Charity avoided eye contact with him, Lewis also remarked that he "could see [Charity's] carotid pulse pounding in his neck. His chest was palpitating.... I could actually see his heart pounding through his shirt."

Lewis testified that, while questioning Charity, he also took note of Petitioner's conduct as he sat in the car. Noticing that Petitioner rolled down his passenger-side window and left it open despite the heavy rain outside,⁷ Lewis ultimately approached Petitioner and asked about his and Charity's journey. Petitioner replied that they were coming from New York, where they had stayed for a few days, and that they were driving to Chesapeake, Virginia, to attend a relative's funeral.⁸ Petitioner then pointed to clothing in the backseat of the car that he said he was going to wear to the funeral. During this interaction, Lewis observed that Petitioner looked straight ahead or at the side view mirror⁹ to watch Charity standing behind the vehicle, but not at Lewis.

Noting that both of the vehicle's occupants exhibited what Sergeant Lewis considered to be "nervous" behavior and that their stories were inconsistent with each other, as well as with the implication of the toll receipt, Lewis returned to speak with Charity. Wanting to continue the questioning in his patrol car because the rain storm was worsening,¹⁰ Lewis, as a precaution, asked Charity if he could conduct a pat-down. Charity agreed; during the pat-down, Lewis felt a suspicious object in one of Charity's pockets, leading Lewis to ask Charity what it was. In response, Charity emptied his pockets and removed, among other things, what Lewis thought to be a small bag of marijuana (later confirmed to be just that). Upon seeing the suspected drugs, Lewis, suspecting Petitioner and Charity were involved in criminal activity,¹¹ informed Charity that finding drugs "authorizes me to conduct a full-blown search of your vehicle." Lewis asked Petitioner to get out of the car and to stand at the rear of the vehicle alongside Charity and Corporal Bromwell¹² while Lewis searched the vehicle.

Lewis searched both the passenger compartment and the trunk of Charity's car. While searching the passenger compartment, Lewis found the "funeral" clothes that Petitioner had referred to earlier and two additional receipts: one, from The "Original" Guaranteed Used Tire Company, dated 20 January 1999; the other, from the Queens Mid. Tunnel, issued on 21 January 1999 at 13:20 hours (1:20 PM). While searching the vehicle's trunk, Lewis found two travel bags, one belonging to Petitioner and one to Charity, and a large, apparently factory-sealed box containing pots and pans. Lewis removed the box from the car so that he could continue to search the trunk. When he returned his attention to the box, he noticed that the factory packaging tape on the bottom of the box appeared to have been re-taped. Lewis removed the tape, opened the box, and found pots and pans in their original packaging. Upon closer inspection inside the box, however, Lewis found a large duct-taped package containing what proved to be 194 grams of cocaine. Lewis and Bromwell promptly arrested Charity and Petitioner.

Petitioner was charged on 5 April 1999 with importation of cocaine (count one),¹³ possession of cocaine with the intent to distribute (count two),¹⁴ possession of cocaine (count three),¹⁵ conspiracy to import cocaine (count four),¹⁶ conspiracy to possess cocaine with the intent to distribute (count five),¹⁷ and possession of paraphernalia (count six).¹⁸ Petitioner was convicted by a jury in the Circuit Court for Wicomico County of counts one through five.¹⁹

On 29 September 1999, following sentencing, Petitioner appealed the trial court's judgments to the Court of Special Appeals. In his brief to the Court of Special Appeals, Petitioner raised three issues: whether the trial judge erroneously failed to strike two potential jurors for cause; whether Petitioner was unlawfully seized when the traffic stop of the vehicle in which he was riding was unconstitutionally protracted; and whether the evidence was legally sufficient to establish constructive possession on Petitioner's part of the contraband cocaine found in the trunk of the automobile in which he was riding. On 8 June 2000, finding no merit in White's argument, the intermediate appellate court affirmed the lower court's judgments. White v. State, 132 Md.App. 640, 753 A.2d 578 (2000). Petitioner petitioned this Court for a writ of certiorari, which we granted on 11 September 2000. White v. State, 360 Md. 485, 759 A.2d 230 (2000).

II.

Petitioner, paraphrasing in his brief a question framed also in his petition for writ of certiorari, argues that his person was illegally seized in violation of the Fourth and Fourteenth Amendments to the Constitution of the United States. Although in his brief he discusses meaningfully virtually no case law to support this assertion and concedes that he has no standing to challenge the search of Charity's vehicle because he had no possessory interest in it, Petitioner maintains that he was, nonetheless, the subject of an unlawful seizure of his person when Lewis asked him to exit Charity's vehicle. Because we shall decide this case on another ground, we need not decide this contention.

III.

A.

In his brief, Petitioner melds issues two and three of his certiorari petition by asserting that the evidence in the record was insufficient to sustain convictions for importation, possession of cocaine with intent to distribute, possession of cocaine, conspiracy to import, and conspiracy to possess with intent to distribute. Specifically, Petitioner submits that the State failed to meet its burden of proving, beyond a reasonable doubt, that Petitioner ...