Arm’s length was close enough for possession conviction

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In an opinion where the majority name-checks Cheech and Chong and the dissent quotes “South Park,” the Court of Appeals has upheld the drug possession conviction of a man whom police found sitting arm’s length from a lit marijuana blunt.

Led by Judge Glenn T. Harrell Jr., the top court’s majority held it was unnecessary for the state to prove that Clavon Smith was actually holding the blunt, or marijuana cigar. Prosecutors only had to establish a circumstantial case that Smith possessed the drugs, which they did, the court held.

“Under Petitioner’s neat, tidy, and clean theory, he may not be convicted of possession unless the blunt was found in his hand (or in his biological system perhaps) or he confessed to the police that he possessed the marijuana,” Harrell wrote. “Unfortunately for Smith, that is not how the statute evolved.”

The dissenters, Chief Judge Robert M. Bell and Judge Clayton Greene Jr., maintained that just being near an illegal substance is not enough to establish possession.

“The majority in the present case … engages in a flawed analysis by focusing on whether Smith was aware of the presence of contraband, then allowing Smith’s mere presence in close proximity to the contraband to serve as a substitute for the requisite element of dominion or control over the contraband,” Greene wrote.

Representatives from the Office of the Attorney General and the Office of the Public Defender, which argued the case, did not return calls for comment Friday.

Smoky haze
According to the opinion, on Dec. 6, 2006, Baltimore police executed a search warrant on a home and found it shrouded in a “haze” of marijuana smoke, which Harrell described as “reminiscent of a scene from a Cheech & Chong movie.” (Harrell used a footnote to explain the comedy duo’s brand of “stoner humor.”)

Smith and four others were sitting around a table in a room, and at the center of the table, within arm’s reach of the occupants, was a burning blunt. Despite the appearance of the police, Smith “was not excited at all,” an officer testified.

Police searched the house and its occupants and found, in a jacket draped over a chair near where Smith had been sitting, “15 red Ziploc bags of marijuana.” They found large amounts of cash on some of the other people in the house but found neither a lot of money nor any drugs on Smith.

A jury convicted Smith of marijuana possession and he was sentenced to a year in prison with all but 60 days suspended. The Court of Special Appeals affirmed.

After reviewing several prior cases, the Court of Appeals held that several factors are relevant in determining whether an individual possessed drugs: proximity, whether the drugs were in plain view of and accessible to the defendant, whether there were indications of “mutual use and enjoyment” of the drugs, and whether the defendant owned or possessed the location where the drugs were found.

“The only factor that the evidence and reasonable inferences in this record do not implicate Petitioner is ownership of the premises, but we have held that factor is not dispositive,” Harrell wrote.

The majority elected not to decide whether the 15 packets of marijuana in the jacket near Smith would have been enough, absent the blunt, to convict him of possession. “The lily need not be gilded further,” Harrell wrote in a final footnote. “Were it meaningful to the outcome, we would have found that evidence insufficient,” because there was no reasonable inference that the jacket was Smith’s or even that he knew the marijuana was inside.

Greene concluded his dissent with a quote from Mr. Mackey, the moralizing school counselor on the animated TV show “South Park.” (He used a footnote to explain who Mr. Mackey is.)

“Although, in the immortal words of Mr. Mackey, “[d]rugs are bad,” the law imposes no legal duty, as opposed to moral duty, to stop others from using drugs, or to run away from people who are using drugs,” Greene wrote. “It is unreasonable to infer from Smith’s proximity to others who are or may have been using marijuana that Smith possessed marijuana on the basis of his association.”

HARRELL
WHAT THE COURT HELD
Case: Smith v. State, CA No. 105, Sept. Term 2009. Reported. Opinion by Harrell; dissent by Greene, J. Filed July 23, 2010.
Issue: Was petitioner’s presence within reach of a lit marijuana blunt sufficient to sustain his conviction for drug possession?
Holding: Yes; affirmed. There was enough circumstantial evidence to permit the conclusion that petitioner possessed the marijuana.
Counsel: Asst. P.D. George E. Burns for petitioner; Asst. A.G. Sharon Stanley Street for respondent.
RecordFax #10-0723-20 (43 pages).