George Spell v. State, No. 2163, September Term, 2017

PROBABLE CAUSE TO ARREST — SUFFICIENCY OF THE EVIDENCE —
CONSTRUCTIVE POSSESSION

        The police had probable cause to believe that appellant was driving without a
license. Appellant admitted that he did not have a license. And there is no question that
appellant’s actions, sitting in the vehicle with the engine running, constituted driving.
Motor Vehicle Admin v. Atterbeary, 368 Md. 480, 503 (2002) (motorist was “driving” when
he was “sitting in the driver’s seat, awake, with the vehicle’s engine running”). Under
these circumstances, the circuit court properly found that the officers had probable cause
to arrest appellant and to search him incident to arrest.

        The evidence was sufficient for the jury to find beyond a reasonable doubt that
appellant possessed the contraband in the utility room. Appellant was found across the
street from the building in which a utility room containing drugs, drug paraphernalia, and
a firearm, much of it in plain view, was located. Appellant had a key to the utility room,
and he had yellow-topped vials of cocaine that were consistent with those found in the
utility room. The jury reasonably could infer that the yellow-topped vials on appellant’s
person came from the utility room and that appellant exercised dominion and control over
the contraband in that room.
Circuit Court for Baltimore City
Case No. 117187014

                                                                                                 REPORTED

                                                                                    IN THE COURT OF SPECIAL APPEALS

                                                                                               OF MARYLAND

                                                                                                   No. 2163

                                                                                            September Term, 2017

                                                                                  ______________________________________


                                                                                               GEORGE SPELL

                                                                                                       v.

                                                                                          STATE OF MARYLAND

                                                                                  ______________________________________

                                                                                       Graeff,
                                                                                       Shaw Geter,
                                                                                       Harrell, Glenn T., Jr.
                                                                                             (Senior Judge, Specially Assigned),

                                                                                                    JJ.
                                                                                  ______________________________________

                                                                                             Opinion by Graeff, J.
                                                                                  ______________________________________

                                                                                       Filed: November 28, 2018


 Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document " authentic.




                             2018-11-28
                             10:58-05:00



Suzanne C. Johnson, Acting Clerk
       On December 11, 2017, George Spell, appellant, was convicted by a jury, in the

Circuit Court for Baltimore City, of several firearm offenses relating to a firearm found in

a utility room in an apartment complex and several drug offenses relating to drugs found

in the utility room and on appellant’s person. The court imposed concurrent sentences

totaling 12 years of imprisonment.1

       On appeal, appellant presents the following questions for this Court’s review, which

we have rephrased, as follows:

       1.     Did the circuit court err in denying appellant’s motion to suppress?

       2.     Was the evidence insufficient to support appellant’s convictions
              relating to the contraband found in the utility room?

       For the reasons set forth below, we shall affirm the judgments of the circuit court.

                 FACTUAL AND PROCEDURAL BACKGROUND

                                  Suppression Hearing

       Officers Anthony Casabona and Norman Jones, members of the Baltimore City

Police Department, testified that, on June 15, 2017, at approximately 2:00 p.m., they were

driving down Madison Street in Baltimore patrolling for crimes related to the sale of




       1
         The convictions and concurrent sentences imposed were as follows: possession of
a regulated firearm after conviction of a disqualifying crime, five years without the
possibility of parole; possession of a regulated firearm after conviction of a felony, five
years with parole; possession of a firearm after conviction of a felony, five years with
parole; possession with intent to distribute heroin, 12 years; two counts of possession with
intent to distribute cocaine, 12 years each; firearm possession with nexus to drug
trafficking, five years; and possession of paraphernalia: $0 fine.
narcotics. They saw appellant parked on the street, sitting in the driver’s seat of a silver

Hyundai Sante Fe, with the vehicle running. The officers previously had encountered

appellant in February 2017, when they arrested him in connection with a search and seizure

warrant relating to a narcotics investigation.2 The officers knew as well from the prior

encounter that appellant did not have a driver’s license, so they decided to “investigate

further.”

       Officer Casabona parked the car parallel to appellant’s car, and Officer Jones began

to speak with appellant from the passenger seat of the police vehicle. Officer Jones asked

appellant what he was doing driving the vehicle, stating that he knew appellant “didn’t

have a license.” Appellant responded: “I know, but I ain’t doing nothing but chilling man.”

Both officers testified that it was illegal to drive or operate a motor vehicle without a

license. At that point, they believed that they had probable cause to arrest appellant.

Officer Jones stated that the following then ensued:

              I spoke to him for a few moments. Later, I asked him if he had
       anything illegal on his person. He told me no. I asked him if I can check
       him out. He said yes, gave me full consent.

              At that time, I exited the car and approached the driver’s side door.
       [Appellant] exited out of the vehicle. And as soon as he came out, I began
       to search his person and found narcotics in his front pocket.




       2
        The silver Hyundai Sante Fe that appellant occupied during the June 15, 2017
encounter was the same vehicle that appellant had told the officers he owned during his
February 2017 encounter with them.


                                             2
       During the search of appellant’s person, Officer Jones found a plastic bag containing

ten vials of suspected cocaine. Nine of the vials had a yellow top, and one vial had a white

top.

       The officers then handcuffed appellant. They searched his vehicle and found a key,

which Officer Casabona removed from the vehicle.3 Officer Jones testified that the key

resembled a utility room key similar to one that appellant had on his person during the

February 2017 incident.

       At some point after the officers handcuffed appellant, Officer Jones received a text

message from a confidential informant (“CI”) stating that appellant had a handgun and was

using the same “stash” locations that had been used when he was arrested for narcotics

violations in February 2017. The locations to which the CI referred were utility rooms in

apartments buildings at 1536 and 1534 East Madison, across the street from where

appellant and his car were found. The messages said that a gun “was stashed in one of the

buildings.” The information received from the CI was sent via text, and Officer Jones

testified that he always deletes text messages from his CIs, so he could not remember the

exact language of the message.

       Officers Casabona and Jones then walked toward the buildings. They first went to

1536 Madison, and used the key found in appellant’s vehicle to open two utility rooms at

that location. They then opened and searched the second-floor utility room at 1534

Madison, where they found controlled dangerous substances (“CDS”) and a handgun.


       3
         The video footage shown at the suppression hearing shows that, prior to this time,
other officers had arrived on the scene.
                                             3
       At the December 7, 2017, suppression hearing, the court initially addressed whether

appellant had standing to challenge the search of the utility room where contraband was

found. Appellant testified that he did not live in the building, but a maintenance man gave

him a key to the laundry room so he could wash his laundry there. Based on this testimony,

the circuit court found that appellant did not have a legitimate expectation of privacy in the

utility room, and therefore, he did not have standing to challenge the search of that room.4

       The court then addressed appellant’s motion to suppress the evidence seized from

his person. Counsel for appellant acknowledged that, because appellant was sitting in the

car with the ignition on, he was operating a motor vehicle without a license, which

permitted the officers to arrest appellant. Counsel argued, however, that the police did not

arrest appellant for that offense, but rather, they “engage[d] in activities not related to the

enforcement of the traffic code in order to determine whether there [was] sufficient indicia

of some [other] illegal activity.”5

       The State argued that the police had probable cause to arrest appellant for operating

a vehicle without a valid driver’s license, that the search of appellant’s person was proper

as a search incident to arrest, and the narcotics found on appellant’s person gave the police



       4
          Appellant does not challenge the circuit court’s ruling that he lacked standing to
challenge the search of the utility room. As discussed, infra, however, he does argue that
the evidence seized from the utility room should have been suppressed as the “fruit” of an
illegal search and seizure of his person.
       5
          Counsel also discussed whether appellant consented to a search of his person and
the vehicle. The State, however, did not argue that as a justification for the police actions,
the circuit court did not rely on consent in its suppression ruling, and the issue of consent
is not raised on appeal.
                                              4
probable cause to search the vehicle.         The State asserted that there was no Fourth

Amendment violation relating to these actions, and because appellant had no standing to

contest the search of the utility room, the court should deny the motion to suppress.

       The circuit court ultimately denied the motion to suppress. After considering the

testimony of Officers Casabona and Jones, as well as the body camera footage, it found

“that the officers had probable cause to arrest the [appellant], again based on their prior

knowledge and information that he did not have a Maryland—valid Maryland driver’s

license.” The court stated that appellant clearly was “operating a motor vehicle by sitting

in the car with the car running,” and therefore, the police “had probable cause to effectuate

the arrest. And what was seized incident to the arrest certainly comes in, and is not fruit

of any poisonous tree.”


                                              Trial

       Trial began on December 8, 2017. Officer Jones testified consistent with his

testimony during the suppression hearing.6 He testified that appellant was operating a

vehicle without a license, and upon a search of appellant’s person, he found a clear plastic

bag containing ten vials of cocaine, nine with yellow tops and one with a white top. He

further testified that he previously had seen the type of key found in appellant’s vehicle,

and he had used it to access a utility room at 1536 East Madison, where he had found

narcotics.




       6
           Officer Casabona did not testify at appellant’s trial.
                                                5
       After finding appellant’s key in June, they used it to open utility rooms in the same

area, and they found “[a] large amount of narcotics, as well as a firearm,” in 1534 East

Madison. Officer Jones explained:

       There was heroin in gelcap form. There was cocaine that was in vials,
       specific vials. There was other paraphernalia to go along with it. There were
       tops that go on top of the vials specifically matching the tops of—the colors
       of the tops that we recovered from [appellant.]

There were 30 vials with yellow tops, which contained a white powder substance. The

police also found a 9mm semiautomatic pistol in the utility room.7

       Officer Jones, who was accepted as an expert in the field of narcotics investigation

and enforcement, testified that a “stash” is a place “where somebody can place or hide any

type of items,” and it typically holds narcotics and/or a firearm. Based on his knowledge,

training, experience, and expertise, Officer Jones explained that firearms are used in

narcotics distribution because “[e]very drug shop has to have some means of protection”

from “outside sources of competition … to protect themselves from getting robbed or

anything like that.” Officer Jones opined that the purpose of the firearm seized in the utility

room was to protect the narcotics in the room. He further opined that the amount of




       7
        The body cam footage shows that the utility room, which appeared to be more of
a junk room, contained a hot water heater, a small glass table, an oven, a blue backpack,
and various debris and boxes. The firearm was recovered from inside the oven. Heroin
gelcaps were found in a small open box in plain view on the glass table. The vials of
cocaine were found inside the blue backpack, which was open.


                                              6
suspected heroin and suspected cocaine seized from the utility room was indicative of

intent to distribute.8

       Jennifer Ingbretson, a forensic scientist with the Baltimore City Police Department,

testified that the firearm found in the utility room was operable. To her knowledge, no

DNA testing was performed on the handgun, but she noted that information gained from

testing for DNA on guns often is “not very probative.”

       Mr. Barry Verger, also a forensic scientist, tested the substances found in the utility

room and on appellant’s person. The substances in the vials found on appellant’s person

and the utility room tested positive for cocaine. The substances found in the gelcaps in the

utility room tested positive for heroin.

       The State and the defense stipulated that appellant previously was convicted of a

crime that “prohibited him from possessing a regulated firearm, as it applie[d] to Counts 2,

3, and 4 of the charging document,” and that he previously had been convicted of a drug

felony.

       Additional facts will be discussed as necessary in the discussion that follows.

                                       DISCUSSION

                                              I.

                                    Motion to Suppress

       Appellant does not challenge the initial traffic stop for operating a vehicle without


       8
         The CI’s statements to Officer Jones were not introduced at trial. Moreover,
neither Officer Jones nor any other State’s witness offered testimony as to the uniqueness
(or lack thereof) of the color of the caps on the cocaine vials specifically with regard to
appellant or generally in the drug trade in Baltimore.
                                              7
a license, but he contends that the “officers’ actions following the initial stop violated the

Fourth Amendment.” He asserts that, although “the officers may have had probable cause

to detain [him] for driving without a license . . . the legitimate traffic stop lapsed into an

unconstitutional narcotics investigation as soon as [he] answered Officer Jones’ question

about his license.”

       The State disagrees. It contends that the traffic stop was valid because the officers

stopped appellant for a “valid traffic violation,” and the police “acted reasonably during

the stop,” which ended in appellant’s arrest.

       This Court has set forth the proper standard of review of a motion to suppress as

follows:

              We review a denial of a motion to suppress evidence seized pursuant
       to a warrantless search based on the record of the suppression hearing, not
       the subsequent trial. State v. Nieves, 383 Md. 573, 581, 861 A.2d 62 (2004).
       We consider the evidence in the light most favorable to the prevailing party,
       here, the State. Gorman v. State, 168 Md. App. 412, 421, 897 A.2d 242
       (2006) (Quotation omitted). We also “accept the suppression court’s first-
       level factual findings unless clearly erroneous, and give due regard to the
       court’s opportunity to assess the credibility of witnesses.” Id. “We exercise
       plenary review of the suppression court’s conclusions of law,” and “make
       our own constitutional appraisal as to whether an action taken was proper,
       by reviewing the law and applying it to the facts of the case.” Id.

Goodwin v. State, 235 Md. App. 263, 274 (2017) (quoting Bowling v. State, 227 Md. App.

460, 466–67 (2015)), cert. denied, 457 Md. 671 (2018).

       The Fourth Amendment to the Constitution of the United States protects against

“unreasonable searches and seizures.” U.S. Const. amend. IV. It is “made applicable

against the States through the Fourteenth Amendment.” Smith v. State, 214 Md. App. 195,

201 (2013), cert. denied, 436 Md. 330 (2013).

                                                8
       “A police-initiated traffic stop constitutes a seizure within the confines of the

Fourth Amendment.” Id. As indicated, appellant does not challenge the initial stop; he

concedes that it was proper because the police had probable cause to believe that he was

driving without a license.

       The State argues that the police had probable cause to justify not only the stop but

also appellant’s arrest. “Probable cause to arrest ‘exists where the facts and circumstances

within the knowledge of the officer at the time of the arrest, or of which the officer has

reasonably trustworthy information, are sufficient to warrant a prudent person in believing

that the suspect had committed or was committing a criminal offense.’” Barrett v. State,

234 Md. App. 653, 666 (2017) (quoting Moulden v. State, 212 Md. App. 331, 344 (2013)),

cert. denied, 457 Md. 401 (2018).         Probable cause “‘requires less evidence than is

necessary to sustain a conviction, but more evidence than would merely arouse suspicion.’”

Id. (quoting Moulden, 212 Md. App. at 344).

       Maryland Code (2012 Repl. Vol.) § 26-202(a) of the Transportation Article (“TR”)

provides, in relevant part, as follows:

          (a) A police officer may arrest without a warrant a person for a violation
          of the Maryland Vehicle Law, including any rule or regulation adopted
          under it, or for a violation of any traffic law or ordinance of any local
          authority of this State, if:
            ...
             (3) The officer has probable cause to believe that the person has
             committed the violation, and the violation is any of the following
             offenses:
            ...
              (viii) Driving or attempting to drive a vehicle in violation of § 16-101
              of this article [which generally requires an individual to have a
              driver’s license]


                                              9
The term “drive” is defined, in relevant part, as: “to drive, operate, move, or be in actual

physical control of a vehicle.” TR § 11-114.

       The record here supports the circuit court’s conclusion that the police had probable

cause to believe that appellant was driving without a license. The police had reason to

believe from a prior encounter in February 2017 that appellant may not have had a license

on June 15, 2017, which appellant confirmed to be a fact. When Officer Jones asked:

“[W]hat are you doing driving that car. You know you don’t have a license,” appellant

stated: “I know, but I ain’t doing nothing but chilling man.” And there is no question that

appellant’s actions, sitting in the vehicle with the engine running, constituted driving.

Motor Vehicle Admin. v. Atterbeary, 368 Md. 480, 503 (2002) (motorist was “driving”

when he was “sitting in the driver’s seat, awake, with the vehicle’s engine running”).

Under these circumstances, the circuit court properly found that the officers had probable

cause to arrest appellant.9

       Appellant contends that, even if the officers had probable cause to arrest him, the

search of his person was not a valid search incident to arrest because it occurred prior to

the time the police put him in handcuffs. This contention similarly is without merit.

       Once a person is lawfully arrested, the “police may search ‘the person of the

arrestee’ as well as ‘the area within the control of the arrestee’ to remove any weapons or



       9
        Whitehead v. State, 116 Md. App. 497, cert. denied, 348 Md. 207 (1997); and
Charity v. State, 132 Md. App. 598, cert. denied, 360 Md. 487 (2000), upon which
appellant relies, did not question probable cause to arrest, and therefore, they are
inapposite.

                                            10
evidence that could be concealed or destroyed.’” Conboy v. State, 155 Md. App. 353, 364

(2004) (quoting United States v. Robinson, 414 U.S. 218, 224 (1973)). That the search

occurs immediately before the formal arrest does not invalidate it because “it is not

‘particularly important that the search precede the arrest rather than vice versa.’” Id.

(quoting Rawlings v. Kentucky, 448 U.S. 98, 111 (1980)). Accord Barrett, 234 Md. App.

at 672 (“The United States Supreme Court has made clear that a search may qualify as a

search incident to arrest even if, sequentially, the search occurs prior to the arrest.”). A

search incident to arrest is valid as long as the search is “essentially contemporaneous”

with the arrest, regardless of whether the search or arrest occurs first. Wilson v. State, 150

Md. App. 658, 673 (2003).

       Here, the body camera footage shows that appellant was arrested within seconds of

the search. Accordingly, the circuit court properly concluded that the search of appellant’s

person was a valid search incident to arrest. It properly denied appellant’s motion to

suppress.10




       10
           Appellant further argues that the search of his “car and the evidence obtained
thereby should have been suppressed as ‘fruit of the poisonous tree.’” Because we have
determined that the stop, detention, arrest, and search of appellant were reasonable under
the Fourth Amendment, there is no “poisonous tree,” and therefore, there is no “fruit” as a
result of improper police conduct. See Cox v. State, 194 Md. App. 629, 652 (2010) (the
fruit of the poisonous tree doctrine serves to exclude evidence that is the direct or indirect
product of police conduct that violated the Fourth Amendment).


                                             11
                                             II.

                               Sufficiency of the Evidence

       Appellant next contends that the evidence was insufficient to support his convictions

relating to the contraband found in the utility room. He asserts that the State did not meet

its burden of proof that he possessed the drugs, paraphernalia, and firearm found in that

room.11

       The State contends that there was sufficient evidence to support the convictions. It

asserts that “[t]he jury had enough evidence to infer Spell was using the utility room as a

stash: he had both matching narcotics and a key, and the key unlocked a room where he

could easily access those same narcotics.”

       The Court of Appeals recently explained the applicable standard of review in

addressing a challenge to the sufficiency of the evidence to support a criminal conviction:

              In determining whether the evidence is legally sufficient, we examine
       the record solely to determine whether “any rational trier of fact could have
       found the essential elements of the crime beyond a reasonable doubt.”
       McKenzie v. State, 407 Md. 120, 136, 962 A.2d 998, 1007 (2008) (citing
       Jackson v. Virginia, 443 U.S. 307, 315–16, 99 S.Ct. 2781, 2786–87, 61
       L.Ed.2d 560, 571 (1979)). In examining the record, we view the State's
       evidence, including all reasonable inferences to be drawn therefrom, in the
       light most favorable to the State. State v. Rendelman, 404 Md. 500, 513–14,
       947 A.2d 546, 553 (2008) (citing Harrison v. State, 382 Md. 477, 487–88,
       855 A.2d 1220, 1226 (2004)); State v. Suddith, 379 Md. 425, 429–31, 842
       A.2d 716, 718–19 (2004) (citing State v. Smith, 374 Md. 527, 533–34, 823
       A.2d 664, 668 (2003)). In so doing, “[i]t is not our role to retry the case.”
       Smith v. State, 415 Md. 174, 185, 999 A.2d 986, 992 (2010). Rather,
       “[b]ecause the fact-finder possesses the unique opportunity to view the

       11
         Appellant does not specify the convictions that he contends are encompassed in
this argument, but the record indicates that it includes all but one of the convictions, i.e.,
the conviction of possession with intent to distribute cocaine based on the drugs found on
appellant’s person, for which appellant received a 12-year sentence.
                                             12
       evidence and to observe first-hand the demeanor and to assess the credibility
       of witnesses during their live testimony, we do not re-weigh the credibility
       of witnesses or attempt to resolve any conflicts in the evidence.” Id. (citing
       Tarray v. State, 410 Md. 594, 608, 979 A.2d 729, 737 (2009)). We defer to
       any possible reasonable inferences the jury could have drawn from the
       admitted evidence and need not decide whether the jury could have drawn
       other inferences from the evidence, refused to draw inferences, or whether
       we would have drawn different inferences from the evidence. Smith, 374
       Md. at 557, 823 A.2d at 682; see also State v. Albrecht, 336 Md. 475, 478,
       649 A.2d 336, 337 (1994) (“[I]t 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.”).

Fuentes v. State, 454 Md. 296, 307–08 (2017).

       Here, the critical issue is whether there was sufficient evidence for the jury to find

the appellant possessed the contraband found in the utility room. “‘Possess’ means to

exercise actual or constructive dominion or control over a thing by one or more persons.”

Md. Code (2012 Repl. Vol., 2017 Supp.) § 5-101(v) of the Criminal Law Article. To prove

dominion or control, the “‘evidence must show directly or support a rational inference that

the accused . . . exercised some restraining or direct influence over’” the contraband. State

v. Gutierrez, 446 Md. 221, 233 (2016) (quoting Moye v. State, 369 Md. 2, 13 (2002)). That

contraband is not found on the defendant’s person does not prevent the trier of fact from

drawing the inference that the defendant was in possession of the contraband. Id. at 234.

       The Maryland appellate courts have set forth four factors to consider in determining

whether evidence is sufficient to support a finding of constructive possession:

       “[1] the defendant’s proximity to the drugs, [2] whether the drugs were in
       plain view of and/or accessible to the defendant, [3] whether there was
       indicia of mutual use and enjoyment of the drugs, and [4] whether the
       defendant has an ownership or possessory interest in the location where the
       police discovered the drugs.”


                                             13
Guttierrez, 446 Md. at 234 (quoting Smith v. State, 415 Md. 174, 198 (2010)). Accord

Kamara v. State, 205 Md. App. 607, 633 (2012).

       These four factors, although relevant to the inquiry of possession, constitute a “non-

exclusive” list. Belote v. State, 199 Md. App. 46, 55 (2011). “None of these factors are,

in and of themselves, conclusive evidence of possession” because possession must be

determined by “examining the facts and circumstances of each case.” Smith, 415 Md. at

198.

       In addressing the four factors, we begin with the ones on which the parties agree.

With respect to the fourth factor, both parties assert, and we agree, that there was no

evidence that appellant had an ownership or possessory interest in the utility room. As the

parties recognized, however, this alone does not prevent a finding of possession. Cook v.

State, 84 Md. App. 122, 135 (1990) (where Cook found in house being used as a base for

a drug operation, there was sufficient evidence to find Cook in possession of drugs despite

his lack of possessory interest in the house), cert. denied, 321 Md. 502 (1991).

       With respect to the second factor, the State argues, and counsel for appellant

conceded at oral argument, that the evidence indicated that appellant had access to the

utility room. We agree, given that the key to the utility room was found in appellant’s car.

       Appellant argues, however, citing State v. Leach, 296 Md. 591 (1983), that access

to a location where drugs are found is not sufficient to infer possession. In Leach, the

defendant was charged with possession of PCP found in a closed container in the bedroom

of an apartment occupied by Leach’s brother. Id. at 596. The circuit court found that

Leach’s brother was the only occupant. Id. at 595. Although Leach had a key to the

                                             14
apartment, and therefore, ready access to the apartment, the Court of Appeals held that

there was nothing to show that Leach had control over the PCP found in the closed

container on the bedroom dresser, or over the paraphernalia found in the bedroom closet.

Id. at 595–96. The Court explained that there was no evidence that linked Leach to the

PCP. Id. at 597.

       Here, by contrast, there was more than mere access to the general location where

the drugs were found. Unlike in Leach, there was evidence connecting appellant to the

specific room in the building where the contraband was found. Drugs found in the utility

room included yellow-topped vials of cocaine that matched (to that degree) the yellow-

topped vials of cocaine found on appellant’s person.

       These matching yellow-topped vials of cocaine were relevant to the third factor,

indicia of use and enjoyment of the contraband. They permitted a rational trier of fact to

infer that appellant was participating in the use and enjoyment of the drugs in the utility

room and that he exercised dominion and control over them. See Commonwealth v.

Delarosa, 740 N.E.2d 1014, 1018 (Mass. App. Ct. 2000) (“‘In some cases a defendant’s

connection to a stash of narcotic drugs [may be] established largely by the close similarity

of the narcotic drugs in his actual possession . . . to the narcotic drugs in the stash.’”)

(quoting Commonwealth v. James, 570 N.E.2d 168, 172 (Mass. App. Ct. 1991)), review

denied, 752 N.E.2d 239 (2001). See also U.S. v. Smith, 520 F.2d 74, 76 (D.C. Cir. 1975)

(where marijuana on sidewalk outside of defendant’s apartment was found “in a bag like




                                            15
other bags found” in appellant’s apartment, court upheld finding that “control of one was

the source of control of the other”).12

       Finally, with respect to the first factor, proximity to the drugs, the State argues that

appellant, who was across the street from the building in which the utility room was

located, “was within an appropriate proximity to his ‘stash’ for the jury to weigh [this

factor] against him.” It points to the testimony of Officer Jones, an expert in narcotics

distribution, who explained the concept of a “stash,” a location where drug dealers keep

narcotics and firearms at a sufficient distance from the dealer to avoid being charged with

possession of that contraband.

       When asked at oral argument if there was any case upholding the sufficiency of

evidence for a conviction of constructive possession when the defendant was found a

similar distance from the contraband, the State indicated that it was not aware of any such

case. We note, however, that, in Delarosa, 740 N.E. 2d at 1017–18, the Appeals Court of

Massachusetts upheld Delarosa’s conviction for constructive possession of cocaine found

in an apartment to which he was connected, even though he was not in the apartment at the

time the drugs were found. Rather, as in this case, Delarosa was found in his car outside

the location of the apartment, but he was in possession of drugs in bags “identical to the

bags” in the apartment. Id. at 1018.




       12
           Appellant does not argue that a separate analysis is required for the gun found in
the utility room. Officer Jones, an expert in narcotics enforcement, testified that guns are
used in narcotics distribution for protection, and he opined that the purpose of the weapon
in the utility room was to protect the drugs found there.
                                              16
       After our review of the relevant factors, and applying the appropriate standard of

review, giving deference “to the inferences that a fact-finder may draw,” Smith, 415 Md.

at 183, we conclude that the evidence was sufficient for the jury to find beyond a reasonable

doubt that appellant possessed the contraband in the utility room. Appellant was found

across the street from the building in which a utility room containing drugs, drug

paraphernalia, and a firearm, much of it in plain view, was located. Appellant had a key to

the utility room, and he had yellow-topped vials of cocaine that were consistent with those

found in the utility room. The jury reasonably could infer that the yellow-topped vials on

appellant’s person came from the utility room and that appellant exercised dominion and

control over the contraband in that room.

                                            JUDGMENTS OF THE CIRCUIT COURT
                                            FOR BALTIMORE CITY AFFIRMED.
                                            COSTS TO BE PAID BY APPELLANT.




                                             17
