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Md. high court finds trunk search constitutional

Police officers were constitutionally justified in searching a car’s trunk for illegal drugs despite only finding them in a passenger’s possession during a traffic stop in Germantown and after a fruitless search of the vehicle’s interior, a divided Maryland high court ruled Friday.

In its 5-2 decision, the Court of Appeals said officers had probable cause to search the trunk based on the suspicious behavior of the driver, the presumed owner of the vehicle, during the stop. Such behavior, in the view of a veteran officer who conducted the search, included extreme nervousness, evasive answers to basic questions and making simultaneous furtive movements with the passenger, as if passing or hiding something illicit, the court said.

The high court’s decision overturned an intermediate Court of Special Appeals holding and reinstated driver Casey Johnson’s conviction for marijuana possession with intent to distribute after more than 104 grams of the drug were found in the trunk.

The Court of Appeals rejected as a “faulty premise” the lower court’s holding that the Fourth Amendment’s prohibition on unreasonable searches barred the police from expanding their search to the trunk after finding no drugs on the driver or in the car’s passenger compartment.

The high court said the totality of the circumstances and the officer’s experience gave the police probable cause to search the trunk.

“Where, as here, there is a fair probability that additional drugs or contraband may be located somewhere in a vehicle, officers have probable cause to search every part of the vehicle where additional drugs or contraband could be found, including the trunk,” Chief Judge Mary Ellen Barbera wrote for the majority. “Probable cause, we must remember, is not a ‘high bar.’ The officers in the present case were not required to believe it more likely than not that the trunk contained additional drugs or drug-related paraphernalia; they needed only to have enough information to support a fair probability that evidence of such a crime would be found there.”

Barbera was joined in the opinion by Judges Clayton Greene Jr., Robert N. McDonald, Shirley M. Watts and Joseph M. Getty.

The Maryland attorney general’s office hailed the decision in a statement Monday.

“We agree with the Court of Appeals that, when the suppression court’s findings of facts were given proper deference, the officers had probable cause to believe that additional contraband might be located in Johnson’s trunk,” the office stated. “We are pleased with the court’s common-sense application of the Fourth Amendment in this case.”

In dissent, Judge Michele D. Hotten said the police’s probable cause ended with the search of the vehicle’s interior compartment because drugs were found only on the passenger, Anthony Haqq. The driver’s nervousness did not justify a search of the trunk, Hotten added in the dissent joined by Judge Sally D. Adkins.

“(T)he police may not impute evidence of a crime found on a passenger to an area of a car that is outside the passenger’s presumed control,” Hotten wrote. “Outside of Johnson’s demeanor, which the state and the majority characterized as nervous, there was no independent probable cause to believe that Johnson was transporting drugs along with the passenger. The officers needed additional facts to bridge the divide between the vehicle’s interior and its trunk.”

Sam Cowin, Johnson’s attorney, said in an email he was ‘disappointed’ with the court’s decision.

“We agree with the dissent and the Court of Special Appeals that ‘the factual circumstances surrounding  the stop of Johnson’s vehicle fell short of establishing probable cause that she was transporting contraband in the trunk of her car,’” said Cowin, of  Hughes Hubbard & Reed LLP in Washington. “We are still considering whether we will file a petition for certiorari (review) in the U.S. Supreme Court.”

Evasive answers

Montgomery County police officer Robert Sheehan pulled Johnson over for a broken brake light in January 2015 and later testified he saw her lean over the center console toward the passenger, Haqq, who was reaching under his seat as if trying to conceal drugs or weapons.

Sheehan also said Johnson was much more nervous than the usual motorist when he asked for her license and registration, as her voice was shaking and her hands trembling so much she had difficulty grasping her wallet. Johnson also gave short, evasive answers to basic questions, such as where she had been and where she was heading, Sheehan said.

Haqq, who had a previous conviction for assault on an officer, was searched and police found 13 grams of marijuana in his waistband, according to court documents.

Though no drugs were found on Johnson, officers said they reasonably concluded she and Haqq were involved in joint criminal activity and thus they had probable cause to search the trunk of the Mitsubishi Galant.

Johnson was convicted in September 2015 of possession of marijuana with intent to distribute, while Haqq was acquitted of the same charge. Johnson was sentenced to five years’ in prison, suspended to time served, and five years’ probation.

The intermediate Court of Special Appeals overturned Johnson’s conviction in March 2017 and the state appealed.

The Court of Appeals rendered its decision in State of Maryland v. Casey O. Johnson, No. 22 September Term 2017.

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