Smith v. State

805 A.2d 1108, 145 Md. App. 400, 2002 Md. App. LEXIS 127

• Court: Court of Special Appeals of Maryland
• Decided: August 27, 2002
• Docket: 3051, Sept. Term, 2000
• Status: Published

Opinions

ADKINS, Judge.

We are asked in this case to make a close call regarding the sufficiency of evidence necessary to support a conviction for knowingly transporting an illegal handgun. The single issue presented turns on whether an inference that a person has knowledge of contraband in his or her vehicle can be drawn from the person’s status as a driver and lessee of that vehicle. In resolving this issue, we borrow concepts from the body of law defining the crime of possession of controlled dangerous substances (“CDS”) and other contraband. We shall hold that a person’s status as both the driver and the owner or lessee of a vehicle supports an inference that the person had knowledge of the presence of contraband in the vehicle that is sufficient to convict, except when there is evidence indicating that a passenger had a greater nexus to the contraband.

Deshawn L. Smith, appellant, was convicted at a bench trial in the Circuit Court for Harford County of transporting a handgun in violation of Maryland Code (1957, 1996 Repl.Vol., 2001 Cum.Supp.), Art. 27 section 36B.¹ We reverse that conviction.

FACTS AND LEGAL PROCEEDINGS

Maryland State Trooper Larry Goldstein testified that at around 5:30 on the evening of March 25, 2000, he was working speed enforcement on 1-95 in Harford County when he was advised by another trooper to stop a white Buick for speeding. Trooper Goldstein made the stop and parked his vehicle behind the Buick. He approached the vehicle on the drivers side and asked the driver, appellant, for his drivers license and vehicle registration. There were two passengers in the vehicle, Michael Brandon Foster and Dayvon Smith. At trial, Trooper Goldstein did not recall the positions of the passengers in the vehicle, but did remember that one of the passengers had been sitting in the rear seat. According to the trooper, when he approached the Buick, he smelled the odor of burnt marijuana. Goldstein returned to his vehicle and checked appellants drivers license and the registration of the vehicle. After calling for backup, Goldstein returned to the Buick and asked appellant to exit the vehicle. The trooper told appellant that he smelled marijuana. In response, appellant admitted that he had smoked marijuana before he was stopped.

When additional police arrived, the officers arrested appellant and his companions for the marijuana offense. Goldstein then searched the vehicle incident to the arrest of the men.

Trooper Slide, one of the troopers who had arrived to assist Goldstein, opened the trunk of the vehicle. He lifted a jacket in the trunk and told Goldstein that he had found a handgun under the jacket. Trooper Goldstein looked into the trunk and saw a handgun in the center.

At trial, Goldstein testified that the vehicle had a fold-down rear seat so that there was direct access to the trunk from the back seat of the vehicle. He also stated that he had not seen any suspicious movement or attempt to hide' anything by the passengers.

Trooper Goldstein removed the handgun from the trunk. The handgun was a silver revolver, a .38 Special with a barrel approximately four inches long. The gun was loaded with five rounds. A subsequent test of the gun determined that it was operable.

None of the men admitted to owning either the gun or the jacket. One of the passengers, Dayvon Smith, however, later admitted to owning the jacket, and the jacket was returned to him.

According to Goldstein, appellant told him that he lived in Essex, Maryland, that he had rented the Buick, that he had had it for a week, and that he was going to New York to return the vehicle.

The trial coürt found appellant guilty of transporting a handgun. It relied on the fact that appellant had rented the car for a week and was its driver. It reasoned that appellant, as the “driver and occupant of the car, knew of the gun’s presence,” and “was at least in constructive possession of [it].”

DISCUSSION

The Parties’ Contentions

Appellant contends that the evidence was insufficient to sustain his conviction. He argues that the location of the gun underneath Dayvon Smith’s jacket makes it probable that Smith put the gun in the trunk. He urges that “[wjhether Appellant was aware of his doing so is pure conjecture.”

The State responds that “the evidence supports a finding that [appellant] knew of the gun’s presence.” It points to the fact that appellant was the driver and renter of the vehicle, that appellant was driving the vehicle to New York, that the gun was loaded and not in a container, and that Dayvon Smith later admitted ownership of the jacket but not the gun.

Standard Of Review

The standard for our review of the sufficiency of the evidence is “whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); see White v. State, 363 Md. 150, 162, 767 A.2d 855 (2001). “Weighing the credibility of witnesses and resolving any conflicts in the evidence are tasks proper for the fact finder.” State v. Stanley, 351 Md. 733, 750, 720 A.2d 323 (1998). We do not re-weigh the evidence, but “we do determine whether the verdict was supported by sufficient evidence, direct or circumstantial, which could convince a rational trier of fact of the defendants guilt of the offenses charged beyond a reasonable doubt.” White, 363 Md. at 162, 767 A.2d 855. “Circumstantial evidence is entirely sufficient to support a conviction, provided the circumstances support rational inferences from which the trier of fact could be convinced beyond a reasonable doubt of the guilt of the accused[.]” Hall v. State, 119 Md.App. 377, 393, 705 A.2d 50 (1998); see Finke v. State, 56 Md.App. 450, 468-69, 468 A.2d 353 (1983), cert. denied, 299 Md. 425, 474 , cert. denied, 469 U.S. 1043, 105 S.Ct. 529, 83 L.Ed.2d 416 (1984).

Cases Cited By The Parties

The State cites Herbert v. State, 136 Md.App. 458, 766 A.2d 190 (2001), and Timmons v. State, 114 Md.App. 410, 690 A.2d 530 (1997), in support of its position. These, as well as the primary cases cited by appellant, involve convictions for possession of CDS. We agree with the parties that CDS possession cases serve as valuable precedent for analysis of this handgun transportation offense.

In CDS possession cases, the State must prove that the defendant had “actual or constructive dominion or control” over the contraband. See Art. 27 § 277(s); White, 363 Md. at 163, 767 A.2d 855. Knowledge is a required element in the proof of dominion and control. See Dawkins v. State, 313 Md. 638, 649, 547 A.2d 1041 (1988). Knowledge of someone else’s possession of CDS, however, is not alone sufficient to show dominion and control. See White, 363 Md. at 164-165, 767 A.2d 855. Under Art. 27 section 36B(b), unless the handgun is upon or about the defendant’s person, in addition to proving transportation, the State must also show the accused’s knowledge that it is being transported.² See Art. 27 § 36B(b). In this case, proof of appellant’s transportation of the handgun is not disputed, as the handgun was located in the trunk of the car appellant was driving. What this case turns on, and what CDS possession cases often turn on, is whether the evidence is sufficient to allow an inference that the defendant had knowledge of the contraband.

In Herbert, we considered the status of the defendant as a possessor of the premises in which contraband was found as an important factor in sustaining those convictions. We held in Herbert that Herberts status as the primary, if not the exclusive, possessor of the apartment makes him criminally responsible for, inter alia, the contraband found in the kitchen. Herbert, 136 Md.App. at 469, 766 A.2d 190.

In contrast to this case, however, Herbert involved contraband found in plain view. In Herbert, the police found 28.8 grams of marijuana in plain view in a small living room in which the defendant and his companion were seated, and the companion was smoking a marijuana cigar. Contraband was also found in areas of Herbert’s residence to which he alone had access.

Timmons is also distinguishable. In Timmons, a currency bag containing rare coins and two bags of cocaine was found under the hood of the car in which Timmons was a passenger. A handgun was found next to the currency bag. There was testimony that linked Timmons to the coins and to a key that fit the bag’s lock. In contrast, the State in this case showed nothing linking appellant to the gun other than appellant’s control over the vehicle. Indeed, the location of the gun, in the trunk of a rented car under Dayvon Smith’s jacket, suggested that the gun may have belonged to him, rather than appellant.

On the other hand, neither Taylor v. State, 346 Md. 452, 697 A.2d 462 (1997), nor White, cited by appellant, is precisely on point. In Taylor, the marijuana that Taylor was found guilty of possessing was in the bag of another person, and unlike appellant, Taylor did not have a possessory interest in the motel room in which the marijuana was found. In White, the defendant was a passenger, not a driver, in the car that contained cocaine hidden in sealed boxes in the trunk. The Court of Appeals expressed reservations about whether the evidence established beyond a reasonable doubt that White knew of the cocaine hidden in the boxes, but ruled that even if knowledge had been shown, there was no evidence that he exercised dominion and control'over the -cocaine. See id. at 164-65, 767 A.2d 855. The Court- noted the limited access to the trunk and lack of possessory interest in the car. See id. at 167, 767 A.2d 855.

Other Maryland Law

Since the briefs were filed in this case, we have upheld the convictions in two cases involving possession of CDS found in a vehicle. See Johnson v. State, 142 Md.App. 172, 788 A.2d 678 (2002), cert. denied, 369 Md. 180, 798 A.2d 552 (2002), and Stuckey v. State, 141 Md.App. 143, 784 A.2d 652 (2001), cert. denied, 368 Md. 241, 792 A.2d 1178 (2002). In Johnson, we held that the evidence was sufficient to sustain the conviction of a front seat passenger, who was one of two persons in a vehicle in which marijuana was found. The marijuana found in the car was “ ‘within arm’s reach’ ” of Johnson, the front seat passenger, and was just as close to him as it was to the driver. See Johnson, 142 Md.App. at 181, 200, 788 A.2d 678. In addition, the marijuana was “very visible” to and “only inches away” from Johnson, was “not covered, concealed, or otherwise hidden” from him, and the odor of marijuana was “ ‘powerful’ ” and “ ‘overwhelming,’ ” even "to a police officer outside the vehicle. See id. at 200-01, 788 A.2d 678. Quoting Folk v. State, 11 Md.App. 508, 275 A.2d 184 (1971), we recognized that we have reversed convictions involving joint possession because of:

1) the lack of proximity between the defendant and the contraband, 2) the fact that the contraband was secreted away in hidden places not shown to be within his gaze or knowledge or in any way under his control, and 3) the lack of evidence from which a reasonable inference could be drawn that the defendant was participating with others in the mutual use of the contraband.

Johnson, 142 Md.App. at 198, 788 A.2d 678 (quoting Folk, 11 Md.App. at 514, 275 A.2d 184).

The facts in this case differ from those in Johnson. We agree that appellant had a possessory right in the automobile in which the gun was found.³ The other Johnson factors, however, are not present. Appellant was not closely proximate to the gun. The gun was not within appellant’s reach, and appellant did not have ready access to it. The gun was not in appellant’s view. The gun was not placed under the front seat or in the glove compartment, from which circumstance we might infer that appellant had seen it being placed there.

Stuckey was the driver of a car in which fifty glass vials of crack cocaine and fifteen small packets of marijuana were found under the driver’s seat on the floorboard. The police also found a bag containing crack cocaine on the driver’s seat. Although there were three passengers in the car, we upheld Stuckey’s conviction for possession of CDS because

(1) [Stuckey] exercised a possessory interest in the car; (2) the narcotics were kept in close proximity to appellant; (3) at the time the car was rented by Hall, the drugs were not under the driver’s seat; (4)[Stuckey] eluded police after the police attempted to [e]ffect a routine traffic stop; and (5) fled from the scene of the accident.

Stuckey, 141 Md.App. at 174, 784 A.2d 652. Stuckey is more like Johnson than this case, because the CDS was within reach of the defendant, unlike here, where the gun was out of appellant’s reach in the back trunk.

In the most recent CDS possession case, the Court of Appeals reversed the defendant’s conviction for possession. See Moye v. State, 369 Md. 2, 796 A.2d 821 (2002). In Moye, a small quantity of CDS was found in an open drawer of the basement of a house. The house was leased by Yolanda and Joseph Bullock, and they, in turn, rented the basement to Greg Benson. Moye, a brother of Mrs. Bullock, had been staying in the upstairs of the house with the Bullocks. When the police responded to a report of a crime occurring at the house, the Bullocks and Benson came out of the house. Benson advised the police that someone else remained in the home. The police, who had set up a barricade around the house, observed Moye on the first floor of the house, looking out different windows, and then looking out a window in the basement. Moye exited the house from the basement .area that was rented to Benson.

In reversing Moye’s conviction, the Court of Appeals determined that because the record did not reflect how long Moye had been staying at the home, it could not “conclude that Moye had any ownership or possessory right to or in the ... home.” Id., 369 Md. at 18, 796 A.2d 821. It also found

nothing in the record establishing Moye’s proximity to the drugs during the time he was in the basement. The evidence failed to establish where Moye was located in the basement in relation to the substances in question and the duration of his sojourn. The trial testimony established that one of the officers observed Moye looking out of a window at the back of the basement shortly before he exited the house. The record does not indicate where the window at the back of the basement was in relation to the drugs and paraphernalia found in the counter drawers.... Because the record does not adequately disclose the duration of Moye’s visit to the basement, it is impossible to tell if, during the time he 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.... [TJhere were no facts established at trial as to whether Moye was present in the room with the drugs for any given amount of time other than to say that he left the Bullocks’s home through the basement door.

Id., 369 Md. at 18-20, 796 A.2d 821.

This case is similar to Moye in that there was no specific evidence that appellant had knowledge of the contraband. The State relied on circumstantial evidence of his knowledge— the fact that he was the driver and lessee of the automobile. This case differs from Moye, however, in that appellant did have a leasehold possessory interest in the car in which the gun was located.

We have recently recognized that drivers have a greater degree of control over automobiles than passengers. In Wallace v. State, 142 Md.App. 673, 791 A.2d 968 (2002), we reversed a back seat passenger’s conviction for possession with intent to distribute cocaine, holding that his motion to suppress the search of his person should have been granted because the police did not have probable cause to arrest and search a passenger in the automobile. See id. at 705, 791 A.2d 968. There, the police stopped the car for traffic infractions. During the traffic stop, a drug detection dog scanned the vehicle and made two positive alerts for the presence of drugs at the rear seam of the driver’s side front door. Based on the canine alert, the police performed a warrantless search of both the car and Wallace. They discovered cocaine on Wallace’s person. We held that although the police could lawfully detain the vehicle’s occupants while the search of the vehicle was being conducted, and could frisk the occupants if they suspected that one or more of them was armed with a weapon, the warrantless search of Wallace was illegal because there was no other evidence to link him to the drugs smelled by the canine. See id.

In reaching this conclusion, we drew a distinction between the status of a driver of a car and that of a passenger, on the ground that the driver was “operating and ‘controlling’ ” the vehicle.

A passenger in a vehicle generally is not perceived to have the kind of control over the contents of the vehicle as does a driver. Therefore, there must be some link between the passenger and the criminal conduct in order to provide probable cause to either search or arrest the passenger.

Id. at 703-04, 791 A.2d 968. See also Johnson, 142 Md.App. at 188, 788 A.2d 678 (recognizing that probable cause to arrest for possession of contraband is more easily found with respect to driver).

We have found no Maryland case in which the only evidence to support a finding of knowledge of contraband was the status of a defendant as both the owner or lessee and the driver of a vehicle (“driver-owner”), and where at least one passenger had equal or greater access to the contraband than did the defendant. Thus, we look to the law of other jurisdictions.

Cases From Other Jurisdictions

Courts from other jurisdictions have considered whether a defendant’s status as a driver, whether or not combined with an ownership or leasehold interest, is sufficient to sustain a finding of possession of the contraband. The driver’s guilt of the crimé of possession often has turned on whether the court views driver status to be a sufficient basis to permit an inference of knowledge of the contraband.' The results are mixed.

Cases Imputing Knowledge Of The Contents Of A Vehicle To The Driver

Several cases have announced a general rule imputing knowledge of contraband found within a car to the driver of the car. For example, in United States v. Lochan, 674 F.2d 960, 966 (1st Cir.1982), the- court held that the evidence was sufficient to find that Lochan, the driver of a car owned by the passenger in the vehicle, had knowledge of three pounds of hashish secreted in hollow spaces behind the spare tire in the trunk, behind door panels, and in the back of the front seats. The court pronounced a general rule:

Knowledge may be inferred from possession, that is, dominion and control over the area where the contraband is found. Drivers generally have dominion and control over the vehicles that they drive.

Id. (citations omitted).

A similar result was reached in United States v. Whitfield, 629 F.2d 136, 142 (D.C.Cir.1980), cert. denied, 449 U.S. 1086, 101 S.Ct. 875, 66 L.Ed.2d 812 (1981). There, the court held that Whitfield, the driver and owner of a car in which guns were found under the front seat, could be found to have control of the guns. One gun was found under each side of the front seat, and both were out of sight. One gun was within reach of the driver, the other within reach of the front seat passenger. The court concluded that

it was not unreasonable for the jury to find Whitfield guilty of possession of one or both of the guns. The jurors could conclude that Whitfield, as the owner and operator of the car, had control over its contents, particularly items within easy reach of the driver’s seat.

Id. at 143.

In United States v. Dixon, 460 F.2d 309 (9th Cir.), cert. denied, 409 U.S. 864, 93 S.Ct. 157, 34 L.Ed.2d 112 (1972), the Ninth Circuit affirmed the conviction of a driver who had been driving his own car, in which 30 pounds of marijuana were secreted in the trunk and beneath the rear seat. In a one-page opinion, the court stated: “[T]he simple act of driving a loaded car provides a substantial basis for a conclusion of knowledge.” Id. at 309. See also United States v. Westover, 511 F.2d 1154, 1157 (9th Cir.), cert. denied, 422 U.S. 1009, 95 S.Ct. 2633, 45 L.Ed.2d 673 (1975)(“From the fact that West-over was driving the car, the jury could reasonably infer that he knew of the trunk’s contents”).

Other cases, while not announcing a general rule, also appear to rely mainly on the status of the defendant as a driver, and sometimes as an owner or lessee, of the vehicle in which contraband is found. In Young v. Indiana, 564 N.E.2d 968 (Ind.App.1991), the court held that the evidence was sufficient to sustain Young’s conviction for possession of cocaine found in plastic bags in a spray can located on the back floorboard of the car. Young, who was not proven to be the owner of the car, argued that because he had a passenger in the car when he was stopped, the evidence was insufficient to show that he had control over the spray can. The court stated that “[cjonstructive possession of items found in an automobile may be imputed to the driver of the vehicle.” Id. at 973.

In Hammins v. Alabama, 439 So.2d 809 (Ala.Crim.App.1983), marijuana was found in the trunk of a car that Hammins was driving. There was one passenger. Hammins first claimed ownership of the vehicle, then denied it. The court reasoned that, owner or not, Hammins was the only individual who had driven it during the two days prior to the marijuana being found, and that he had “complete and total use of the car.” Id. at 810. The court upheld Hammins’ conviction of possession of marijuana, stating that “Hammins, as the driver of the automobile, had complete possession, dominion, and control over the area where the contraband was found, namely, the trunk of the vehicle.” Id.

In Tennessee v. Brown, 915 S.W.2d 3 (Tenn.Crim.App.1995), the owner and driver of a car was convicted of possession of cocaine with intent to sell after a police officer observed a passenger throw two bags of cocaine from the vehicle. The amount of cocaine in the bags totaled 5.06 grams. Although the Court of Criminal Appeals of Tennessee reversed Brown’s conviction because of improperly admitted evidence, the court held that the evidence was sufficient to sustain the conviction. See id. at 5, 8. The court stated that “knowledge may be inferred from control over the vehicle in which the contraband is secreted.” Id. at 7. It held that the jury could infer knowledge and possession from the defendant’s ownership of the car. See id. at 8. Rejecting Brown’s contention that the evidence showed only his mere presence in an area where drugs were found and association with a person controlling drugs, the court explained:

The defendant was more than merely present in the area where the cocaine was found and more than just associated with the passenger who tossed the cocaine. The defendant owned the car out of which the passenger tossed the cocaine; he knew the passenger and he was in an area known for drug transactions.

Id.

The Equal Access Rule

Many courts have been willing to draw only a limited inference from the defendant’s driver status when the vehicle was jointly occupied. See generally Emile Short, Annotation, Conviction of Possession of Illicit Drugs Found in Automobile of Which Defendant Was Not Sole Occupant, 57 A.L.R.3d 1319 (2002)(collecting cases). These courts’ restrictive views are based on the “equal access rule,” under which knowledge of the presence of the contraband cannot be inferred from mere ownership or possession of the vehicle when another person had equal access to the portion of the vehicle in which contraband was found. See, e.g., Manning v. Florida, 355 So.2d 166, 166-67 (Fla.Dist.Ct.App.1978)(without direct evidence of defendant’s knowledge of marijuana in the unlocked center console, “to which the other passengers had equal access,” his position in the driver’s seat was not sufficient to support conviction for possession); Lombardo v. Georgia,, 187 Ga.App. 440, 370 S.E.2d 503, 505 (1988)(equal access rule applies in automobile context wdien evidence shows persons other than driver had equal access to contraband in trunk; conviction affirmed without such evidence); Missouri v. Johnson, 81 S.W.3d 212 (Mo.App.2002)(“constructive possession will not be inferred in circumstances where others have had equal access to the vehicle unless there is evidence of additional incriminating circumstances implicating the defendant”); Pennsylvania v. Wisor, 466 Pa. 527, 353 A.2d 817, 818-19 (1976)(when passengers had equal access to place where contraband was located, defendant’s position in driver’s seat v/as not sufficient to support conviction for possession).

In United States v. Reece, 86 F.3d 994 (10th Cir.1996), the Tenth Circuit reversed Reece’s conviction for possession with intent to distribute cocaine found on the person of a passenger in his car. A large sum of money was found in the glove compartment. The passenger acknowledged ownership of the drugs and the money and stated that Reece had no knowledge of either. In reversing Reece’s conviction, the court identified the need for a nexus between the defendant and the contraband:

“Dominion, control and knowledge, in most cases, may be inferred if a defendant has exclusive possession of the premises.” Where possession is not clear, such as when the contraband may be attributed to more than one individual, constructive possession requires some nexus, link, or other connection between the defendant and the contraband. The jury may draw reasonable inferences from direct or circum- • stantial evidence, yet an inference must amount to more than speculation or conjecture.

Id. at 996 (citations omitted). The court observed that the only evidence that Reece knew of the contraband was a tape recorded conversation between' Reece and his passenger, made in the back of a police vehicle after their arrests. The court pointed out, however, that, by the time that conversation occurred, Reece had seen the drugs after théy had been taken from the passenger. The court reasoned" that “[t]he government’s case is barren of evidence linking or demonstrating a nexus between Mr.- Reece and the narcotics found on [the passenger’s] person' and therefore cannot sustain the conviction[.]” Id. '

In Mackey v. Georgia, 234 Ga.App. 554, 507 S.E.2d 482 (1998), Mackey, who previously had lent his car to his brother, was pulled over for improperly stopping in the roadway when he let a passenger out of his car. Less than one gram of cocaine was found under the driver’s' seat. Mackey was convicted of possession of cocaine; but the Court of Appeals of Georgia reversed the conviction, holding that the defendant’s mere status as driver or owner of the vehicle was insufficient evidence of possession:

If the only evidence of possession of contraband found in an automobile is that the defendant is the owner, driver, or is in possession of the vehicle, and there is evidence of prior use of the vehicle by other parties in the recent past, or equal access to the accessible portions of the vehicle by other parties, then the prior possession or equal access rule would demand an acquittal.

Id. at 483 (citation omitted). The Georgia court also held that the State’s additional evidence, i.e., Mackey’s refusal to permit a search of the vehicle and nervousness when he refused to consent to the search, was insufficient evidence to permit a rational jury to find beyond a reasonable doubt that Mackey had possessed the cocaine. See id. at 555, 507 S.E.2d 482.

The Court of Appeals of Florida applied a similar rule in Moffatt v. Florida, 583 So.2d 779 (Fla.App.1991). Moffatt was stopped for racing a vehicle, owned by his father, on a highway. A canine alerted to the presence of drugs in the car. A police officer found marijuana and a cassette tape case with four pills under a floor mat on the passenger side of the car. A subsequent search revealed an ice chest containing unopened cans of beer on the driver’s side rear seat and a plastic Certs case containing more pills under the chest. Cigarette rolling papers were found in the glove compartment, and clothing and personal belongings of both Moffatt and a passenger were found in the car. The passenger had been left alone in the vehicle while the officer was explaining the traffic ticket to Moffatt. The trial court found Moffatt guilty of possessing the pills in the Certs container discovered under the cooler, but the Court of Appeals of Florida reversed, holding that mere ownership or possession of the car was insufficient.

[I]f the premises where the contraband is found is in joint possession of the accused, knowledge of the presence of the contraband and the ability to control it will not be inferred from ownership or possession but must be established by independent proof.

Id. at 781.

An Ohio appellate court imposed a similar requirement of independent proof in Ohio v. Duganitz, 76 Ohio App.3d 363, 601 N.E.2d 642 (1991), cert. dismissed, 63 Ohio St.3d 1445, 589 N.E.2d 389 (1992). There, a gun was found under a blanket on the front seat, to the right of the driver’s seat. Although the gun was placed closer to the driver’s side, the court reasoned that the passenger had been alone in the vehicle for approximately one minute “and could have just as easily slid the gun under the blanket.” Id. at 646. It held that the evidence did not establish beyond a reasonable doubt that Duganitz, the driver of the vehicle, “knowingly carried or had the weapon.” Id.

Similarly, in Utah v. Salas, 820 P.2d 1386 (Utah Ct.App.1991), the Court of Appeals of Utah held that there was not a sufficient nexus between Salas, the driver and owner of a car, and cocaine found under the back seat of his car where a passenger had been sitting. See id. at 1387. One of the officers who stopped Salas testified that the backseat passenger had moved from behind the driver just before the vehicle had been stopped. This court also required independent evidence. “In order to find that the accused was in possession of drugs found in an automobile he was not the sole occupant of, and did not have sole access to, there must be other evidence to buttress such an inference.” Id. at 1388. The court observed that, “ ‘in finding constructive possession of controlled substances in nonexclusive occupancy settings, courts have relied on extensive and detailed factual evidence.’ ” Id. at 1389 (citation omitted). Considering that Salas’ wife was a co-owner of the vehicle and that one of the passengers had better access to the spot where the cocaine was found than did Salas, the court found the evidence “inconclusive as to whether defendant knew of or possessed the cocaine.” Id. The court also noted that a passenger had moved “in a furtive manner just before the traffic stop,” and that there was no evidence that Salas had carried a package to his vehicle, had been in or reached to the back seat, had talked suspiciously with the other passengers, or had behaved suspiciously in any way. See id.

In Guevara v. United States, 242 F.2d 745 (5th Cir.1957), the Fifth Circuit held that the evidence was insufficient to prove that Guevara, the driver of the vehicle, possessed a package of 50 marijuana cigarettes found on the floor under the seat within reach of either Guevara or his passenger. See id. at 747. The court concluded that, under those circumstances, “there [was] no rational connection between ownership or possession of the automobile and possession of the [marijuana] cigarettes.” Id. The court noted that the vehicle had been unlocked and anyone could have placed the cigarettes in the vehicle, but also observed that the cigarettes could have belonged to the passenger as easily as Guevara. See id.

Countervailing Circumstances Neutralizing Inference From Driver-Owner Status

Later Fifth Circuit cases, decided after Guevara, have allowed the jury to infer possession from driver status, see, e.g., United States v. Prudhome, 13 F.3d 147, 149 (5th Cir.), cert. denied, 511 U.S. 1097, 114 S.Ct. 1866, 128 L.Ed.2d 487 (1994), but have limited the application of that inference when countervailing circumstances were present. See United States v. Stewart, 145 F.3d 273, 280 (5th Cir.1998); United States v. Wright, 24 F.3d 732 (5th Cir.1994).

In Wright, the Fifth Circuit held that a sentencing court had insufficient evidence to sustain a finding, during sentencing, that Wright previously had possessed a firearm. The evidence relied on by the sentencing court was that Wright had operated a vehicle, had eluded the police, and had made “furtive movements near the glove box.” Id. at 735. The glove box in which the gun had been found was locked, however, and the passenger, who was the owner of the vehicle, had the key. The Fifth Circuit explained:

We recognize that in other cases we have indicated that mere dominion over a vehicle in which a firearm is found can lead to an inference of constructive possession. But in those cases, we were not confronted with such overwhelming countervailing evidence.... [W]hile dominion over the vehicle certainly will help the government’s case, it alone cannot establish constructive possession of a weapon found in the vehicle, particularly in the face of evidence that strongly suggests that somebody else exercised dominion and control over the weapon.

We stress that our holding is conditioned upon this countervailing evidence ... The sentencing court probably would not have erred in finding that Wright constructively possessed the weapon if such countervailing evidence did not exist.

In the more recent Fifth Circuit case, Stewart, the court reversed the driver’s conviction, without mention of earlier precedent that mere dominion over a vehicle in which contraband is found can lead to an inference of constructive possession. Although Stewart was the driver of a car owned by the passenger’s girlfriend, the Fifth Circuit held that the evidence was insufficient to sustain Stewart’s conviction for possession with intent to distribute cocaine. See id. The passenger had 96 grams of crack cocaine on his person. See id. at 275. Two well hidden guns were found, one under the driver’s seat and one under the passenger’s seat. The passenger admitted ownership of the guns and cocaine. Stewart was not charged with possession of the guns, but was convicted of possession with intent to distribute cocaine. In reversing Stewart’s drug conviction, the Fifth Circuit stated, “Stewart’s presence in the vehicle and association with [the passenger] are insufficient to support a reasonable inference that Stewart had any knowledge of the drugs.” Id. at 277.

A “Greater Nexus” Limitation

We are not persuaded by the “equal access”'rule, at least as applied in cases like Guevara, Duganitz, Mackey, and Moffatt, in which the contraband was equally accessible to the driver or driver-owner and to the passengers. We think the better view is that one’s status as a driver-owner is sufficient to permit an inference that the driver-owner has knowledge of contraband in the vehicle (“driver-owner inference”). Cf. Wallace, 142 Md.App. at 704, 791 A.2d 968. (“A passenger in a vehicle generally is not perceived to have the kind of control over the contents of the vehicle as does a driver”). The driver-owner has the keys to the car, as well as legal control over where the car goes and what goes into it. Because the space of a vehicle is confined, a driver-owner generally can monitor what articles are located in it. Thus, we conclude that there is a sufficient factual basis to draw an inference of knowledge from the defendant’s driver-owner status. To hold otherwise would allow savvy transporters of contraband to avoid conviction by simply inviting passengers to accompany them on their illegal journeys.

On the other hand, we do not view the driver-owner inference to be as unlimited as the broad language from some cases would suggest. See, e.g., Westover, 511 F.2d at 1157; Dixon, 460 F.2d at 309. We believe there are circumstances when it would be unjust if the State were able to convict a defendant by relying solely on the driver-owner inference. Rather than limiting this inference by an “equal access” rule, however, we see more wisdom in a “greater nexus” limitation. Under our formulation of this limitation, if there is a greater nexus between the passenger and the contraband than between the driver-owner and the contraband, then the driver-owner should not be convicted based solely on the driver-owner inference. One way, but by no means the only way, to establish a greater nexus is to present evidence that the passenger had better access to the contraband. Other ways would be to show, for example, use (e.g., fingerprints, possession or purchase of ammunition); consciousness of guilt (e.g., incriminating statements, efforts to avoid detection or arrest); or location or size (e.g., a large quantity of the contraband, or contraband hidden in a specially designed compartment).⁴ In this case, as discussed below, the greater nexus is established by the location of the gun in relation to the passenger’s coat.

Our driver-owner inference with a greater nexus limitation is consistent with the holdings in most of the extraterritorial cases upholding convictions that we have cited. In Lochan, the drugs were stored in hollow spaces in the trunk and inside the vehicle, so that no passenger had a greater nexus than the driver. See Lochan, 674 F.2d at 963. Similarly in Dixon and Hammins, the drugs were in the trunk, and- there was no evidence that any passenger had access to the trunk. See Dixon, 460 F.2d at 309; Hammins, 439 So.2d at 810. In Lombardo, the driver-owner had the only keys to the trunk, where the cocaine was located, and there was no showing that any passenger had used the trunk. See Lombardo, 370 S.E.2d at 505. In Whitfield, the loaded guns were under each side of the front seat, giving the driver the same access as the passenger. See Whitfield, 629 F.2d at 139. In Young, although the drugs were in a spráy can on the floorboard in the back seat, there was no indication that the passenger was in the back seat or had more access than Young did.⁵ See Young, 564 N.E.2d at 973.

Our greater nexus limitation also calls for results consistent with several of the cited cases holding that the inference of knowledge from driver or driver-owner status was insufficient to convict. In Wright, the passenger, who was also the owner of the car, had a greater connection because he had the key to the box in which the gun was found. See Wright, 24 F.3d at 735. In Stewart, the passenger obviously had better access because the drugs were found on his person. See Stewart, 145 F.3d at 275. Similarly, in Reece, the passenger had a greater nexus because he acknowledged ownership of the contraband. See Reece, 86 F.3d at 995. In Salas, the passenger had a greater nexus because the contraband was under the back seat where he had been sitting, and he made a furtive motion when the car was stopped by the police. See Salas, 820 P.2d at 1388-89.

We find indirect support for the driver-owner inference with the greater nexus limitation in Maryland appellate decisions addressing another criminal law inference-that the possession, either alone or with others, of recently stolen property, unless reasonably explained,' is sufficient to support a conviction for theft. See Butz v. State, 221 Md. 68, 77-78, 156 A.2d 423 (1959); Offutt v. State, 55 Md.App. 261, 263-65, 463 A.2d 876, vacated on other grounds, 297 Md. 520, 467 A.2d 181 (1983); Charles E. Moylan, Jr., Maryland’s Consolidated Theft Law and Unauthorized Use § 12.6 (2002). The possession of recently stolen goods inference is constitutional, and satisfies the requirement that each element of an offense be proven beyond a reasonable doubt. See Dinkins v. State, 29 Md.App. 577, 349 A.2d 676, aff'd, 278 Md. 238, 362 A.2d 91 (1976). The driver-owner inference, like the possession of stolen goods inference, and other permissible criminal law inferences, is based on a rational connection between the basic fact and the inferred or presumed fact. It is constitutional, so long as it is only a permissible inference, because the fact sought to be inferred (knowledge of the contraband) from proof of the basic fact (driver-owner status) is more likely than not to be true if the basic fact is true. See Lynn McLain, 5 Maryland Evidence § 303.2 (1987) (discussing cases establishing constitutional standard).

In West v. State, 312 Md. 197, 539 A.2d 231 (1988), the Court of Appeals reviewed the conviction of West for stealing a purse from a woman shortly after she left a drugstore. The purse contained a money order that the woman had just purchased. The State presented evidence at trial that the defendant and another man tried to cash the same money order at the store where it was purchased.

In his first attempt to cash the check, on the same day it was purchased, West fled from the store when he was told it had been reported stolen. When he returned the next day to retrieve the money order, he was arrested. Upon questioning by the police, West claimed, inconsistently, that he had purchased, found, and been given the money order. At trial, he testified that he had purchased it at the drugstore. The victim’s son, who had witnessed the purse-snatching, testified that West was not the individual who stole the purse.

On appeal, West argued that the evidence was not sufficient to convict him of theft, and could support only a conviction for receiving stolen goods. He maintained that there was no direct evidence that he was the purse snatcher, and that indeed, the only direct evidence indicated that the purse snatcher was someone else. The State argued that because West was shown to be in possession of stolen property, the common law inference from possession of recently stolen goods justified the inference that he was the robber. See id. at 207-08, 539 A.2d 231.

The Court, in explaining its ruling in' favor of West, quoted from a 1916 opinion of Justice Cardozo, who explained how the possession of stolen goods inference should operate.

“It is the law that recent and exclusive possession of the fruits of crime, if unexplained or falsely explained, will justify the inference that the possessor is the criminal____

Only half of the problem, however, has been solved when guilty possession fixes the identity] of the offender. There remains the question of the nature of his offense. Here again the facts must shape the inference. Is the guilty possessor the thief, or is he a receiver of stolen goods? Judges have said that, if nothing more is' shown,' we may take him to be the thief. But as soon as evidence is offered that the theft was committed by some one elsé, the inference changes, and he becomes a receiver of stolen goods....

The problem is a hard one. To solve it we must steadily bear in mind that the inference of guilt to be drawn from possession is never one of law. It is an inference of fact. Other facts may neutralize it, or repel it, or render it so remote or tenuous or uncertain that in a given case we should reject it.”

Id. at 210-11, 539 A.2d 231 (quoting New York v. Galbo, 218 N.Y. 283, 112 N.E. 1041, 1044 (1916)) (citation omitted). Adopting this rationale, the Court of Appeals held that a fact-finder could not draw the inference that West was guilty of robbery because “there is evidence that weighs against the inference implicating the more serious offense, here robbery. This contrary evidence is the testimony of [the victim’s son] that West was not the purse snatcher.” Id. at 211, 539 A.2d 231.

We find Justice Cardozo’s analysis of the proper application of, and limitations on, the possession of stolen goods inference equally germane to the driver-owner inference. This, too, is a factual inference that should be rejected if other facts neutralize it, or make it overly tenuous. Evidence that a passenger in a car had a greater nexus to contraband than the driver-owner will operate to neutralize the driver-owner inference, so that it would be unjust to convict a defendant solely on the basis of the inference. Unless that neutralizing evidence is present, the driver-owner inference is a valid factual inference that is sufficient to support conviction.

We caution that the greater nexus limitation is not a bright line test, but merely a method of analyzing the sufficiency of evidence used to establish the knowledge necessary to convict in cases in which the State’s case rests solely on a driver-owner inference. Whether there is a greater nexus is a factual determination bound to the facts of each particular case.

Application Of The Greater Nexus Limitation To This Case

The remaining question in this case is whether the location of the gun underneath the passenger’s coat in the trunk was evidence that the passenger had a greater nexus to the gun than appellant. Although the question is a close one, we conclude that the location of the gun does suggest that either the passenger placed the gun there, and then put his coat on top, or that the gun fell out of the passenger’s coat after both were placed in the trunk. Although any back-seat passenger also could have placed the gun there through the passageway between the back seat and the trunk, the mere existence of this passageway is not what drives our decision. We are persuaded, rather, by the location of the gun underneath the coat, which suggests common ownership of the gun and the coat.

If the State had produced other evidence that connected appellant to the gun or the coat, then the driver-owner inference, combined with that other evidence, would have supported a conviction. This was a bare-bones presentation by the State, however. Our review of Trooper Goldstein’s testimony, which was transcribed in less than thirteen pages, reveals no other evidence to support a connection between appellant and the gun.

There was no evidence, for example, that appellant opened the trunk for the passenger by using his key in the keyhole on the trunk itself, and thus would have seen the gun at that time. We cannot presume that he did so because in many automobiles the trunk “pops open” by pushing or pulling a device located inside the vehicle. Nor was there evidence of other items that belonged to appellant near the gun in the trunk. When asked by the prosecutor “what, if anything, else ... was in the trunk of the vehicle,” Trooper Goldstein replied, non-responsively, “I do remember seeing in the back seat some dryer sheets.” Nor was the gun of such a large size that we can infer that appellant knew it was placed there.

Appellant did not attempt to evade Trooper Goldstein, make any incriminating statements indicating knowledge of the gun, attempt to conceal or jettison the gun, or otherwise demonstrate any consciousness of guilt.⁶ Appellant’s fingerprints did not appear on the gun. Nor was there any evidence that appellant had recently used or possessed a similar gun. Nor were there any other indicia of ownership or use that tied the gun to appellant, such as, for example, evidence that appellant possessed ammunition for it.⁷

The State relied on an inference to establish appellant’s knowledge of the gun. The inference was neutralized by the greater nexus between the gun and the passenger, i.e., the location of the gun under the passenger’s coat. If the State had presented any other evidence connecting appellant to the gun, such as that mentioned in the two preceding paragraphs, that evidence, combined with the driver-owner inference, would have supported a conviction. Without such additional evidence, however, the driver-owner inference, when juxtaposed against countervailing evidence suggesting common ownership of the gun and the coat by the passenger, was not sufficient, to establish beyond a reasonable doubt that appellant knew of the presence of the gun in the trunk of the vehicle.

JUDGMENT REVERSED. COSTS TO BE PAID BY HARFORD COUNTY.

1 . Maryland Code (1957, 1996 Repl.Vol., 2001 Cum.Supp.), Art. 27 section 36B provides, in pertinent part,

§ 36B. Wearing, carrying or transporting handgun; unlawful use in commission of crime.

(b) Unlawful wearing, carrying, or transporting of handguns; penalties.—Any person who shall wear, carry, or transport any handgun, whether concealed or open, upon or about his person, and any person who shall wear, carry or knowingly transport any handgun, whether concealed or open, in any vehicle traveling upon the public roads, highways, waterways, or airways or upon roads or parking lots generally used by the public in this State shall be guilty of a misdemeanor. . . .

2 . Art.' 27 section 36B(b) also states that "[i]t shall be a rebuttable presumption the person is knowingly transporting the handgun[.]" The effect of this mandatory rebuttable presumption is to shift the burden of proving guilt beyond a reasonable doubt from the State to the defendant. The Supreme Court has held that such mandatory rebuttable presumptions are unconstitutional because they relieve the State of its constitutionally imposed burden of proving guilt. See, e.g., Sandstrom v. Montana, 442 U.S. 510, 524-25, 99 S.Ct. 2450, 2459, 61 L.Ed.2d 39 (1979)(because State must prove beyond reasonable doubt all elements of offense, including required mental state, mandatory rebuttable presumption that has the effect of shifting the burden of proof to the defendant is an unconstitutional denial of due process). The statutory presumption in section 36B(b) apparently predates these Supreme Court cases. See Shell v. State, 307 Md. 46, 69, 512 A.2d 358 (1986). We note that neither the State nor the trial court explicitly relied on the section 36B(b) presumption, and that the State does not do so in this appeal. For some time, this presumption has been highly suspect. See, e.g., Maryland Crim. Pattern Jury Instructions 4:35:3 cmt. ("The committec omitted any reference to the statutory presumption of knowledge, believing that it would be unconstitutional to instruct in the language of the statute”)(citing Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), and 57 Op. Md. Att’y Gen. 288 (1972)). To the extent that there is any lingering doubt on the question, however, we hold that the "knowledge” presumption in section 36B(b) is unconstitutional.

3 . In this regard, appellant would stand in the same position as an owner. Unlike a situation where one borrows a car from the owner, it is unlikely that the rental company or a previous renter would leave contraband in the vehicle.

4 . See, e.g., Missouri v. Johnson, 81 S.W.3d 212, 215-16 (Mo.App.2002)("the trier of fact can consider the amount and value of the drags as tending to show [d]efendant’s conscious and knowing possession of the drugs;” passenger’s knowledge of contraband in vehicle he rented, to which others had equal access, may be shown by "the presence of a large quantity of the substance, routine access to an area where controlled substances are found; nervousness exhibited during the search of the area; the subject of the controversy in plain view; commingling of the controlled substances with the [passenger’s] personal belongings; ... the conduct and statements made by the accused;” and a "discernible odor” of drugs or "something used to mask an otherwise pungent smell”).

5 . In Lochan and Young, the drivers were not established to be the owners or lessees. In our holding today, we address only the instance when a driver owns or leases the car being driven with contraband. We do not reach the question of whether a similar limitation would apply if the driver were not an owner or lessee.

6 . Goldstein testified that appellant was stopped for traveling 79 m.p.h. in a 65 m.p.h. zone, and that he traveled about a tenth of a mile before he stopped. The State does not suggest that this distance was unusual, and it does not appear to us to be so.

7 . After the trial court found appellant guilty, it asked appellant why he had a rented car from New York. Appellant replied:

My rental car was from Maryland. I rented the car in Maryland, went to New York to go visit my family the weekend before. The car that I had, the brakes was bad. They switched it for me from the same rental company, but they said I had to bring the car back to New York.

Appellant also told the court: "[T]hat Saturday evening I seen my friends, asked what was they doing, would they take a ride with me. They said, 'Yes.' We were going to New York, coming right back. I had no idea that one of the passengers was carrying.” Id. The State asserts that appellant, "unlike the two passengers in the car, had a reason for being in the car with the handgun. He was traveling to New York to return the car. ...” We see nothing in a trip to New York to return a rental car that would indicate a need for a gun.