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Beware your passengers and cars’ contents

Jul 02, 2012 Beware your passengers and cars’ contents

What happens if the cops stop the car you are driving, for a moving violation and find illegal drugs, weapons, or other contraband? The jury or judge (at a bench trial) might be permitted to presume that you know of the contraband’s presence and thereby convict you, absent an explanation otherwise  Such a presumption — rebuttable, of course — means it is essential to think twice before driving someone else or borrowing another’s car. 

Here is how bad such a presumption is in Maryland:

"[U]nder Maryland law, ‘knowledge of the contents of the vehicle can be imputed to the driver of the vehicle.’ State v. Smith, 374 Md. 527, 550 (2003). The Court of Appeals has held that ‘the status of a person in a vehicle who is the driver, whether that person actually owns, is merely driving or is the lessee of the vehicle, permits an inference, by a fact-finder, of knowledge, by that person, of contraband found in that vehicle.’ Id. Such an inference of knowledge may be drawn even though there was a passenger in the vehicle who arguably had equal access and a greater evidentiary nexus to the weapon. For example, in Smith, the undisputed evidence that Smith was the driver of a leased car was sufficient to establish his knowledge of a gun found in the trunk, even though the weapon was covered by a jacket belonging to one of two passengers and was not tested for fingerprints. Id. at 544-45, 558-59. When, as in this case, the contraband is discovered under the driver’s seat within appellant’s reach, such an inference of knowledge may be stronger. Cf. Larocca v. State, 164 Md. App. 460, 476 (2005) (en banc) (evidence that marijuana was found ‘immediately underneath the [driver’s] seat in a small car, in arm’s reach, where it was readily accessible to him’ supported an inference that driver knew about its presence)."

Samba v. Maryland, ___ Md. App. __ (June 28, 2012). 

Under Samba and decades-old caselaw, one also risks arrest and conviction for being within easy access of contraband anywhere else, including when a car passenger or guest at another’s home. Although I am not advising to be paranoid, you need to decide for yourself whom you associate with in the event they are harboring contraband. And certainly beware of transporting packages for others on planes without carefully checking the contents and for hidden compartments. 

Before I started practicing as an attorney, as a favor to a friend in Singapore whose brother kindly hosted me for two days on the first leg of mu vacation after the bar exam, I lugged my friend’s huge suitcase from his home in Washington back to his native Singapore, without checking its contents, ever. As bad as the U.S. laws are on unknowingly carrying contraband, had my friend’s suitcase contained the statutorily requisite minimum weight of heroin or marijuana, that would have meant the death penalty. My friend is thoroughly trustworthy, but also trusting. What would have happened if his suitcase included a parcel from another friend that had contraband? Fortunately, nothing unusual turned up in the suitcase.  

Back to Maryland, fortunately the defense is not limited to the defendant’s testimony to overcome the presumption that the driver knows all the contents of the car s/he drives. For instance, I once won a pot pipe conviction by convincing the judge of reasonable doubt that my client knew that someone else’s messy car had a pot pipe in the console. 

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