CDS

Possession- Misdemeanor

 

Statute

CR § 5-601. Possessing or administering controlled dangerous substance
   (a) In general. -- Except as otherwise provided in this title, a person may not:

   (1) possess or administer to another a controlled dangerous substance, unless obtained directly or by prescription or order from an authorized provider acting in the course of professional practice.

 

Elements Checklist

From Pattern Criminal Jury Instruction 4:24

-          The defendant knowingly possessed the substance

-          The defendant knew the general character or illicit nature of the substance

-          The substance was (specified controlled dangerous substance).


Necessary witnesses

Where “notice of availability” letter has been mailed/delivered 10 days before trial and there has been no written request for chain of custody & chemist by the defendant 5 days before trial:

-          Witness placing specified item(s) of CDS in defendant’s possession

o       Generally a combination of the observing officer & the recovering officer (but may also be a witness who observed the CDS recovery)

-          Chain of custody up to the point where the CDS was submitted

-          Probable cause witness (as required)

CJP §10-1001 & 10-1002

 

Where there has been no “notice of availability” letter 10 days before trial OR there has been a request for chain of custody and chemist by the defendant 5 days before trial:

-          Witness placing specified item(s) of CDS in defendant’s possession

-          Chain of custody up to the point where the CDS was submitted

-          (probable cause witness as required)

AND

-          Seizing officer

-          Packaging officer, if the packaging officer is not also the seizing officer

-          Chemist

-          Other person who actually touched the substance and not merely the outer sealed package before or during the analysis

-          NOT required to produce a person who handled the substance after analysis.

CJP § 10-1001 to 10-1003

 

Sentence

Not marijuana: 4 years or a fine not exceeding $ 25,000 or both. CR § 5-601(c)(1)

Marijuana: 1 year or a fine not exceeding $ 1,000 or both. CR § 5-601(c)(2)

-          The Defendant may mitigate at sentencing (for marijuana only) by proving medical necessity. If the Court finds that medical necessity does exist, the maximum penalty is $100. CR § 5-601(c)(3)


Quick Questions

What do I do if my chemist is unavailable? (CJP §10-1001, 1003)

            If there was no chemist demand made at least 5 days before trial and we sent them the chemical analysis availability letter at least 10 days before trial, there’s no problem. The LIMS report is prima facie evidence that the submitted items were whatever the LIMS shows.

 

What do I do if my recovering officer is unavailable? (See p. _______)

You can get by with using another witness who observed the recovering officer recover the cds. It’s not great, but depending on your judge you should be fine so long as the witness can establish that the recovering officer didn’t have cds in his hand before the search, that the recovering officer would not have been in a position to plant evidence without being seen, and that the observing witness observed the cds as it was recovered from a specified place.

 

What do I do if my packaging officer is unavailable? (See p. _______)

            If someone observed the packaging officer package the cds, just have them testify.

If nobody observed the packaging, then best case: You need the recovering officer, whoever handed the packaging officer the cds, the person who the packaging officer handed the packaged cds to when he was done packaging it, the chemist, and the actual cds.

If you had to: You might be able to get by with just using the recovering officer, the chemist, and a photo of the cds.

You need to show a reasonable probability that the cds was not tampered with from the time of recovery until it was analyzed.

            To do this, you can have the recovering officer testify as to the characteristics of the item(s) he recovered (18 red top vials, 3 zips of rock with batman symbols, etc) and the chemist testify that these characteristics matched the items she analyzed. Each should testify that the photo/cds was what they recovered/analyzed. If they can’t do this, you have a problem. If the items weren’t at least a little unique in either quantity/appearance, you may also have a problem.

            Then you need to further discount the possibility of tampering by accounting for the amount of time that the cds was in the packaging officer’s custody.

 

What do I do if my submitting (non-packaging) officer is unavailable? (See p. ________)

            If there was a demand for chain of custody, you should be fine with the recovering officer, packaging officer, chemist, and actual cds (or at least a photo). Have each testify that the cds was what they handled/analyzed.

 

What do I do if the defendant argues that he had a prescription? (See p. _______)

            The burden is on the defendant, not the State, to show he falls into the exception.

 

How do I show constructive possession?

 

 

What are factors to show joint possession? (no factor dispositive) (See p. ___________)

(1) proximity (2) plain view (3) ownership/right where found (4) sign of mutual enjoyment


Relevant Background

            In 1974, the General Assembly introduced CJP § 10-1001 et seq. in order to allow CDS analyses into evidence without requiring the presence of the chemist or those in the chain of custody. The original set out largely the same procedural requirements as the present statute.

In 1987, the Court of Special Appeals in Parker v. State, 72 Md. App. 543, 549 (1987) held that where a defendant made a §10-1003 request for presence of the chain of custody, evidence should have been excluded where the State did not call to the stand every person to have handled the packaged CDS.

In response to Parker, the legislature amended § 10-1002 effective July 1, 1988 so that the definition of "chain of custody" included only those persons who actually handled the CDS, not those who merely handled the packaging. See Wilkinson v. State, 78 Md. App. 697, 701 (1989) (“It is clear from the Legislature's prompt repeal and revision of § 10-1002 [following the Parker decision] that it never intended that couriers should be part of the chain of custody.”)

The floor report for the 1988 amendment observed that police personnel who only deliver or have temporary custody of a sealed package are not in a position to alter the substance and are not necessary witnesses. See Thompson v. State, 80 Md. App. 676, 682 (1989).

 

Chain of Custody and the Chemist – Overview of §10-1001 et seq.

Courts And Judicial Proceedings §10-1001 et seq. provide a “shortcut” to admitting a LIMS or other chemical analysis report as prima facie (but refutable) evidence that the item submitted was the specified type of CDS and that the chain of custody was proper.

 

In order to obtain this “shortcut,” it is necessary that the State comply with certain standards:

-          A copy of the report/statement must be made available to defendant at least 10 days prior to the introduction of the report/statement at trial. CJP § 10-1003(a)(3).

-          The report must be signed/certified by the chemist as set out in § 10-1001.

-          The chain of custody must have identifying information regarding the property submitted and contain the signatures of each person as set out in § 10-1002.

 

Even if this is done, the Defendant can file a written request to the State at least 5 days before trial requiring that it produce the chemist and those in the “chain of custody.” § 10-1002(a) defines the “chain of custody” which the State is required to produce (with some caveats) as:

-          The seizing officer

-          The packaging officer

-          The chemist or other person who actually touched the substance and not merely the outer sealed package in which the substance was placed by the law enforcement agency before or during the analysis of the substance

If the State fails to meet these requirements, it is merely returned to the standard manner of proof in criminal cases. See Best v. State, 79 Md. App. 241, 254 (1989) (“There is not the remotest suggestion of any legislative intent to make the admissibility of evidence or the proof of a chain of custody more difficult than it had been before the passage of [§10-1001 et seq.].”).

In the event that the shortcut does not apply, the chemist must be called along with the chain of custody (generally the recovering officer, packaging officer, submitting officer, and anyone else who handled the actual drugs before they were analyzed). The State only has to prove that there is a reasonable probability that the item was not tampered with.

§10-1001 and the Chemical Analysis Report

CJP §10-1001

A report signed by the chemist or analyst who performed the test or tests as to its nature is prima facie evidence, without the analyst personally appearing in court, that:

o       the material delivered to the analyst was properly tested under procedures approved by the Department of Health and Mental Hygiene

o       those procedures are legally reliable

o       the material was delivered to the analyst as stated by the person in the report

o       the material was or contained the substance therein stated

The report must:

o       identify the chemist or analyst as an individual certified by the Department of Health and Mental Hygiene, the Department of State Police, the Baltimore City Police Department, or any county police department employing analysts of controlled dangerous substances, as qualified under standards approved by the Department of Health and Mental Hygiene to analyze those substances

o       state that the chemist or analyst made an analysis of the material under procedures approved by that department

o       state that the substance, in the opinion of the chemist or analyst, is or contains the particular controlled dangerous substance specified.

Nothing in this section precludes the right of any party to introduce any evidence supporting or contradicting the evidence contained in or the presumptions raised by the report.

 

“§ 10-1001 does not require the admission of a chemical analysis report. The statute simply recognizes that chemical analysis of drugs is reliable evidence and creates a statutory exception to the hearsay rule by providing that it is not necessary to produce the chemist who performed the test to testify to its accuracy in every trial where a chemical analysis conducted by a qualified person under approved procedures has been submitted.” Best v. State, 79 Md. App. 241, 255 (1989)

The requirement of certification alluded to in § 10-1001 only applies when the chemist does not appear in court to testify. Rice v. State, 89 Md. App. 133, 142 (1991) (emphasis added)

 

§10-1002 and the Chain of Custody

CJP §10-1002

A statement signed by each successive person in the chain of custody that the person delivered it to the other person indicated on or about the date stated is prima facie evidence that the person had custody and made the delivery as stated, without the necessity of a personal appearance in court by the person signing the statement. (b)(1)

The statement must:

o       contain a sufficient description of the material or its container so as to distinguish it as the particular item in question (b)(2)

o       state that the material was delivered in essentially the same condition as received.(b)(2)

The “chain of custody” means:

o       The seizing officer (a)(1)(i)

o       The packaging officer, if the packaging officer is not also the seizing officer (a)(1)(ii)

o       The chemist or other person who actually touched the substance and not merely the outer sealed package in which the substance was placed by the law enforcement agency before or during the analysis of the substance (a)(1)(iii)

o       "Chain of custody" does not include a person who handled the substance in any form after analysis of the substance. (a)(2).

Nothing in this section precludes the right of any party to introduce any evidence supporting or contradicting the evidence contained in or the presumption raised by the statement. (b)(4)

 

§10-1003 - Presence of chemist or analyst at criminal proceeding

CJP §10-1003

In order to obtain the benefit of §10-1001 and 1002:

o       a copy of the report or statement to be introduced must be mailed, delivered, or made available to counsel for the defendant or to the defendant personally when the defendant is not represented by counsel, at least 10 days prior to the introduction of the report or statement at trial. (a)(3)

 

Where the Defendant files a written demand in the proceedings at least 5 days prior to a trial in the proceeding:

o       The State shall require the presence of the chemist, analyst, or any person in the chain of custody as a prosecution witness. (a)(1).

o       The provisions of §§ 10-1001 and 10-1002 of this part concerning prima facie evidence do not apply to the testimony of that witness.(a)(2)

Nothing contained in this part shall prevent the defendant from summoning a witness mentioned in this part as a witness for the defense. (b)

 

State’s Requirement to inform Defendant

Where the State notified the Defendant that they would be calling the chemist at trial, the State could not then rely on §10-1001 without notifying the defendant of their changed intent at least 10 days before trial. Knight v. State, 41 Md. App. 691, 695 (1979)

 

Defendant’s Basis for Requesting Chemist

“A particular defendant may invoke his legislative command because of a firm belief that he can successfully refute or cast doubt upon the allegations made, or he can demand that the witnesses appear for no other reason than to drag out the trial and inconvenience everyone involved. The latter scenario, we agree, was not intended by the Legislature's effort to protect a defendant's right of confrontation in drug cases, but abuse of the process unquestionably remains.” Thompson v. State, 80 Md. App. 676, 683 (1989)

 

 

 

 

 

 

When The Shortcut Does Not Apply

There are three distinct manners in which the State may lose the evidentiary shortcut of §10-1001 et seq:

 

1)      Where the State decides to call a witness

2)      Where the State does not comply with the notice/technical requirements of §10-1001 et seq.

3)      Where the Defendant makes a request for specific witnesses

 

1) Where the State decides to call a witness

If there is a question about whether the analysis accurately describes the item seized, it’s probably best to call the chemist in to testify. §10-1001 provides prima facie evidence, but it can be rebutted by contraverting testimony.

 

The requirement of certification alluded to in § 10-1001 only applies when the chemist does not appear in court to testify.  Rice v. State, 89 Md. App. 133, 142 (1991)

 

§10-1001 et seq. “applies only when the chemist or analyst does not testify at trial.” Lester v. State, 82 Md. App. 391, 398 (1990).

 

2) Where the State fails to comply with §10-1001 et seq.

The cure for a State violation of §10-1001 et seq. is the production of the live witness rather than merely the production of the chemist's written analysis. Best v. State, 79 Md. App. 241, 255 (1989)

 

3) Where the Defendant makes a request for specific witnesses

-          The Defendant is NOT entitled to have the State call everyone who touched the CDS (packaged or unpackaged) to the stand. See §10-1002(a), §10-1003(a)

-          If the Defendant files written notice at least 5 days before trial, they are entitled to have the State call (as a State witness) the seizing/recovering officer, the packaging officer, the chemist, and anyone else who handled the actual CDS before or while it was analyzed (exceptions noted below). §10-1002(a)(1)(iii), §10-1003(a)(1)

-          There State is not required to call anyone who handled the CDS after it was analyzed to prove chain of custody.§10-1002(a)(2)

 

State not absolutely required to call all chain of custody witnesses specified in §10-1002

§10-1003 is not a technical rule etched in stone requiring either the production of three live witnesses or forfeiture of the evidence upon which the prosecution is founded. Thompson v. State, 80 Md. App. 676, 683 (1989)(referring to the seizing officer, packaging officer, and chemist specified in §10-1002)

 

§10-1003 means that where a necessary witnesses capable of submitting to direct and cross-examination can be produced, the State has the duty to present them in court. However, the State cannot produce an adjudicated lunatic, a comatose patient or one who is deceased. §10-1003 was not intended to be an exclusionary rule. Thompson v. State, 80 Md. App. 676, 683-684 (1989)(but see note on Best v. State, 79 Md. App. 241 (1989)(allowing circumvention))

Even where the witness is not unavailable, the State fulfills its obligation where another witness who observed that portion of the link testifies. Best v. State, 79 Md. App. 241, 258 (1989) (where State did not call technician who removed CDS from packaging and repackaged, satisfied where witness who observed him do this testified)

 

Where an item of evidence is jointly possessed by two people, it is only necessary for one of them to testify; as long as one of the joint possessors testifies and that testimony negates the possibility of tampering, it alone is adequate to prove the chain of custody under §10-1003. Lester v. State, 82 Md. App. 391, 396 (1990)

 

Where the State cannot produce a witness required by §10-1003, sufficient where State is placed in the same place it was before §10-1001 et seq. were promulgated. Thompson v. State, 80 Md. App. 676, 684-685 (1989) (Where officer who recovered & submitted was dead by time of trial, sufficient chain of custody where chemist, officer who observed CDS recovery, and officer who observed CDS packaging & submission testified).

 

Proving Chain of Custody

When the defendant, pursuant to § 10-1003, demands the production of certain witnesses, the State may not resort to the documentary shortcuts but must follow routine practice. Where this occurs, the State is no better off than it was before the 1974 statute eased its burden of production. In no event, however, is the State in a more difficult position than it had been in prior to the 1974 statute. Best v. State, 79 Md. App. 241, 254 (1989)

 

The proponent of a particular tangible item of evidence must establish its "chain of custody," i.e., must account for its handling from the time it was seized until it is offered into evidence. The circumstances surrounding the safekeeping of the item of evidence during that time need only be proven as a reasonable probability; in most instances established by responsible parties who can negate a possibility of 'tampering' and thus preclude a likelihood that the thing's condition was changed." Jones v. State, 172 Md. App. 444, 462 (2007).

 

Where an item of evidence is jointly possessed by two people, it is only necessary for one of them to testify to prove the chain of custody. Lester v. State, 82 Md. App. 391, 396 (1990)

 

It is clear that the Legislature never intended that couriers should be part of the chain of custody. Wilkinson v. State, 78 Md. App. 697, 701-702 (1989) (Where officer transported packaged CDS from location to the state police lab over an hour away, not necessary part of chain of custody)


Lester v. State, 82 Md. App. 391, 396 (1990)(where officer who may have helped packaged materials wasn’t called, chain of custody intact where other officer present at time testified)

 

Best v. State, 79 Md. App. 241 (1989) (where State did not call technician who removed CDS from packaging and repackaged, satisfied where witness who observed him do this testified)

 

Levine v. State, 93 Md. App. 553, 564 (1992)(where luggage containing CDS transported to MD from out of state by police, no chain of custody required as to identifiable luggage)

 

Possession

 

Under the CDS statute, "possess" means to exercise actual or constructive dominion or control over a thing by one or more persons.  CR § 5-101(u)

 

Article 27, § 277(s), of the Maryland Annotated Code defines possession as "the exercise of actual or constructive dominion or control over a thing by one or more persons." The duration of the possession is not material, neither is it necessary to prove ownership by title. Folk v. State, 11 Md.App. 508, 511, 275 A.2d 184 (1971). It is necessary to establish that the defendant had knowledge of the presence and illicit nature of the drugs; however, such knowledge may be proven by the circumstances. Dawkins v. State, 313 Md. 638, 651, 547 A.2d 1041 (1988).
This Court, in Folk, supra, examined various cases in which joint possession was found to exist.  [***15]  In analyzing these cases, we observed:The common thread running through all of these cases affirming joint possession is 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.
Cook v. State, 84 Md. App. 122, 134 (Md. Ct. Spec. App. 1990)

 

ACTUAL OR CONSTRUCTIVE POSSESSION

Constructive possession

 

Where defendant 1 of 8 people in house, sufficient to convict where

 

Control" of CDS means exercising a "restraining or directing influence over" the item allegedly possessed. For the State to prove that the defendant had control over the drugs, the evidence must show directly or support a rational inference that the defendant did in fact exercise some dominion or control over the prohibited drug in the sense that he exercised some restraining or direct influence over it.
Moye v. State, 369 Md. 2, 13 (2002)

 

mere proximity to the drug, mere presence on the property where it was located, or mere association, without more, with  [**863]  the person who does control the drug or property on which it is found, is insufficient to support a finding of possession."
White v. State, 363 Md. 150, 164 (Md. 2001)

 

Sufficient evidence existed to support defendant's convictions on possessory charges relating to handguns, drugs, and paraphernalia, despite defendant being one of eight persons in the house from which the drugs and weapons were recovered and despite defendant not having a possessory interest in the house, as the evidence established that defendant was in close proximity to the contraband; expert testimony supported a finding that the individuals in the kitchen wherein defendant was found were engaged in a large-scale drug operation; defendant's attempt to flee was evidence sufficient to support a finding of constructive possession of narcotics and paraphernalia found in various places throughout the premises in question; police surveillance of the residence showed that defendant was in the home for about an hour and 15 minutes, not the three or four minutes asserted by defendant; and, ultimately, it was for the jury to determine the credibility of defendant's reason for being in the house. Handy v. State, 175 Md. App. 538, 930 A.2d 1111 (2007).

 

   A search warrant issued for the seizure and search of a briefcase described in the warrant was legal notwithstanding that the briefcase was in the constructive and not actual possession of defendant at the time it was seized. Cable v. State, 65 Md. App. 493, 501 A.2d 108 (1985), cert. denied, 305 Md. 621, 505 A.2d 1342, cert. denied, 477 U.S. 908106 S. Ct. 328291 L. Ed. 2d 571 (1986).
   Evidence was sufficient to establish that defendants exercised joint and constructive possession of controlled substance, despite the defendants' lack of a possessory or proprietary interest in the house. Cook v. State, 84 Md. App. 122, 578 A.2d 283 (1990), cert. denied, 321 Md. 502, 583 A.2d 276 (1991).
   Conviction for possession upheld where defendant was in car's front passenger seat whereas the drugs were found in the left rear door interior. Colin v. State, 101 Md. App. 395, 646 A.2d 1095 (1994), cert. denied, 337 Md. 42, 650 A.2d 725 (1994).

 

DOMINION OR CONTROL

 

   Testimony of police officers as to defendant's statements of ownership of other items in a car in which cocaine was found established a direct link between defendant and the contraband and was sufficient to establish that defendant knew of and possessed the cocaine. Timmons v. State, 114 Md. App. 410, 690 A.2d 530 (1997).

   Evidence that defendant personally signed for and took delivery of a package containing marijuana and was found standing above the package with the marijuana exposed nearly thirty minutes after the delivery was sufficient to support convictions of possession of a controlled dangerous substance with intent to distribute, and possession of marijuana. McDonald v. State, 347 Md. 452, 701 A.2d 675 (1997), cert. denied, 522 U.S. 1151, 118 S. Ct. 1173, 140 L. Ed. 2d 182 (1998).
   Without more than the mere existence of two marijuana seeds located in the front of the car, the police officer lacked probable cause to arrest defendant, a rear seat passenger, for possession of marijuana. Livingston v. State, 317 Md. 408, 564 A.2d 414 (1989).

 

EVIDENCE REQUIRED TO PROVE "POSSESSION." --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, 463 A.2d 872 (1983).

 

   Defendant's possession of drugs with intent to distribute was adequately proven by evidence that large amounts of narcotics, packaged for sale, were found in the rental car that he was driving shortly before his arrest, where he was seen taking possession of the keys immediately after the rental occurred, and where the car had been subject to routine cleaning immediately prior to the rental. Stuckey v. State, 141 Md. App. 143, 784 A.2d 652 (2001).

   Because the facts showed that marijuana in a bag was found immediately under defendant's car seat, within his arm's reach, and readily accessible to him but not the other occupants of the vehicle, sufficient evidence existed to support the inference of defendant's knowledge of the drug in addition to the mutual use and enjoyment of the contraband was a permissible and reasonable inference indicating his knowledge. It was also within the trial judge's discretion to disbelieve an witness's affidavit that the marijuana belonged to him and that defendant had no knowledge of it in the vehicle. Larocca v. State, 164 Md. App. 460, 883 A.2d 986 (2005), cert. denied, 390 Md. 285, 888 A.2d 342 (2005).

 

   To prove control, 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. Knowledge of the presence of an object is normally a prerequisite to exercising dominion and control. Evidence that contraband was strewn throughout a stolen vehicle that flipped three times after fleeing from police was sufficient for a jury to reasonably infer that defendant, who was a passenger in the vehicle, was aware of the presence of the contraband, knew its illegal nature, and was, therefore, in possession of the contraband for conviction purposes. State v. Suddith, 379 Md. 425, 842 A.2d 716 (2004).

 

CONTROL REQUIRED --Circumstantial evidence presented failed to establish the requisite knowledge and exercise of dominion or control over the controlled dangerous substances and paraphernalia defendant was convicted of possessing where it was impossible to tell if, during the time defendant traveled into the basement from the first floor of the home prior to exiting through the basement door, he had, in fact, stood over the drawers in the counter and had the plain view vantage point urged by the State. Moye v. State, 369 Md. 2, 796 A.2d 821 (2002).

 

JOINT POSSESSION (“BY ONE OR MORE PERSONS”)

   Defendant's presence in hotel room that contained marijuana smoke, his joint rather than exclusive possession of the room, his awareness that marijuana had been smoked, and his mere proximity to contraband concealed in travel bag of another occupant, were insufficient to convict him of possession of marijuana. Taylor v. State, 346 Md. 452, 697 A.2d 462 (1997).

This Court, in Folk, supra, examined various cases in which joint possession was found to exist.  [***15]  In analyzing these cases, we observed:The common thread running through all of these cases affirming joint possession is 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.
Cook v. State, 84 Md. App. 122, 134 (Md. Ct. Spec. App. 1990)

 

 

   Evidence was sufficient to conclude that appellant, a juvenile, possessed marijuana under subsection (u) of this section and § 5-601 of this title when appellant and three others were in a car where the marijuana was found after a high-speed chase. Marijuana in a crumpled newspaper was found on the floor directly behind the driver's seat, within appellant's easy reach; the newspaper was in plain sight; an odor of marijuana came from the car; and the high-speed chase, the refusal of the driver to stop once the car was blocked by police, and the refusal of the occupants to roll down their windows supported the inference that all of the occupants, including appellant, wanted to escape being pulled over for fear of being caught with marijuana. In re Ondrel M., 173 Md. App. 223, 918 A.2d 543 (2007).

 

   Where none of three occupants of a vehicle admitted ownership of drugs found in a part of the vehicle accessible to all of the occupants, the arrest of the occupant who subsequently admitted such ownership was supported by probable cause to believe that such occupant was in possession of the drugs, either solely or jointly, within the meaning of former Article 27, § 277(s) (repealed 2002, now subsection (u) of this section); it was reasonable for the arresting officer to infer a common enterprise among the three occupants, in view of the likelihood of drug dealing in which an innocent party was unlikely to be involved. Maryland v. Pringle, 540 U.S. 366, 124 S. Ct. 795, 157 L. Ed. 2d 769 (2003).

JOINT POSSESSION. --It is recognized that possession may be joint; among the factors to be considered in determining whether there was joint possession are: (1) the 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. Hall v. State, 119 Md. App. 377, 705 A.2d 50 (1998).

Sufficient Evidence

   Evidence was sufficient to support defendant's convictions for possession of heroin, cocaine, and marijuana because (1) a police officer observed people drive into an area, approach a group of men, exchange money for an object, and leave the area; (2) when police officers approached the group, the men started running; (3) defendant and co-defendant ran to an upstairs apartment, and co-defendant dropped a small bag of suspected heroin; (4) when an officer apprehended defendant in the apartment, defendant threw a bag containing a large sum of money and a handgun to the ground; and (4) when a detective apprehended the co-defendant, the co-defendant threw a bag containing a large amount of drugs packaged for sale. Thus, the jury (1) could have reasonably concluded that defendant was in close proximity to the drugs and had knowledge of the presence of the drugs; (2) could have reasonably inferred that defendant was participating in the sale of the drugs, and that the gun and money thrown by appellant were instruments related to the sale of drugs; and (3) could have concluded that defendant was in possession of the gun that was recovered from the bag that a police officer saw defendant throw to the ground. Price v. State, 172 Md. App. 363, 915 A.2d 432 (2007).
KNOWING CHARACTER OF CDS

 

   For an accused to have possession of controlled substances, the accused must not only know of the presence of the substance but also of the general character or illicit nature of the substance. Dawkins v. State, 313 Md. 638, 547 A.2d 1041 (1988).

   Because the facts showed that marijuana in a bag was found immediately under defendant's car seat, within his arm's reach, and readily accessible to him but not the other occupants of the vehicle, sufficient evidence existed to support the inference of defendant's knowledge of the drug in addition to the mutual use and enjoyment of the contraband was a permissible and reasonable inference indicating his knowledge. It was also within the trial judge's discretion to disbelieve an witness's affidavit that the marijuana belonged to him and that defendant had no knowledge of it in the vehicle. Larocca v. State, 164 Md. App. 460, 883 A.2d 986 (2005), cert. denied, 390 Md. 285, 888 A.2d 342 (2005).

 

KNOWLEDGE IS AN ELEMENT OF POSSESSION OFFENSES. --"Knowledge" is an element of the offenses of possession of a controlled dangerous substance and possession of controlled paraphernalia. Dawkins v. State, 313 Md. 638, 547 A.2d 1041 (1988); Taylor v. State, 346 Md. 452, 697 A.2d 462 (1997).

 

    Proof of knowledge for the purpose of proving possession may be derived from circumstantial evidence and the inferences drawn from such evidence. Colin v. State, 101 Md. App. 395, 646 A.2d 1095 (1994), cert. denied, 337 Md. 42, 650 A.2d 725 (1994).

 

SUFFICIENT EVIDENCE TO SHOW KNOWLEDGE ELEMENT OF POSSESSION --There was sufficient evidence to support the knowledge element of the crime of possession of a controlled dangerous substance because a reasonable fact-finder reasonably could infer that defendant knew the drugs were in the hatchback area of a car before he was arrested; defendant admitted awareness of the presence of illegal drugs in the car he was driving but he did not see the officer recover the marijuana from the rear hatchback area of the car, did not hear any reference to drugs having been found in the vehicle, and did not learn through some other post-arrest source that there were drugs in the vehicle. Sellman v. State, 152 Md. App. 1, 828 A.2d 803 (2003).

 

Factors that are to be considered in determining theknowledge" required for possession are: (1) proximity between the defendant and the contraband; (2) whether the drugs or contraband were within plain view or otherwise within the knowledge of the defendant; (3) ownership or some possessory right in the premises; and (4) the presence of circumstances from which a reasonable inference could be drawn that the defendant was participating with others in the mutual enjoyment of the contraband."
Colin v. State, 101 Md. App. 395, 406 (1994)

 


Prescription
§ 5-807. Burden of proof
   (a) Burden on claimant.
--
   (1) The State need not negate an exemption, proviso, or exception set forth in this title in a:
      (i) complaint, information, indictment, or other pleading; or
      (ii) trial, hearing, or other proceeding under this title.
   (2) The burden of proof to establish an exemption, proviso, or exception is on the person claiming its benefit.
CR § 5-807

 

Martelly v. State, 230 Md. 341, 349 (1963)(even where defendant presented two prescriptions, sufficient other evidence to convict)

 

exceptions in a statute creating an offense are "to be regarded as matters of defense which the defendant must prove to withdraw himself from the operation of the statute."
Maki v. State, 239 Md. 311, 314 (1965)

 

when the facts are peculiarly within the knowledge of the defendant, as they were here, the burden is on him to prove that he comes within one or more of the exceptions.
Spurrier v. State, 229 Md. 110, 112 (1962)(burden on defendant charged with concealed weapon to demonstrate that he fell within exception allowing him to carry said weapon)

 


Since the burden of proving that an accused falls within a statutory exception is upon the accused, the trial court did not err in refusing to instruct the jury that no evidence was adduced by the State showing that appellant was outside the pale of the statutory exception in question.
Mills v. State, 12 Md. App. 449, 464 (1971)(burden on defendant to show he fell within exception to narcotics)

 

Under MD law, “many persons are authorized to possess a drug for various specified purposes. If the State were required to prove that the accused was not such an authorized person, it can be seen the burden on the State would be so great that narcotics laws would be almost unenforceable. Simultaneously, it is a light burden to require accused to produce evidence sufficient to raise a reasonable doubt as to whether he was authorized to possess the narcotic in question.” Agee v. State, 8 Md. App. 148, 151-152 (1969)(burden on defendant to prove authorized cds possession)