. . . On January 16, 2003, the appellant and his friend, David Hinkle, were arrested and charged with possession of marijuana with intent to distribute and simple possession. Hinkle pleaded guilty to the lesser offense, and the State nol prossed the greater offense. At the appellant’s trial, the State called as witnesses Sergeant Johnny Lee Murray, Officer John Lehman, and Officer Todd Webster, of the Hagerstown Police Department; Hinkle; and Jeremy Miner, another friend of the appellant. The appellant did not call any witnesses. . . . No one else was in the area. According to those portions of the testimony of Hinkle and Miner most favorable to the State, as the trio was driving to N. Mulberry Street, Miner produced a marijuana blunt, lit it, smoked it, and passed it to Hinkle. This communal partaking in marijuana took place in the appellant’s presence, in the passenger compartment of the Honda. It continued while the appellant got out of the car and went into the house where the Honda was double parked. Sergeant Murray, standing nearby, watched as the appellant entered the house on N. Mulberry Street and then a short time later exited and returned to the Honda. Sergeant Murray did not see the appellant carrying or holding anything. However, when the appellant opened the car door to get back inside, Sergeant Murray smelled burning marijuana in the vicinity of the Honda.

He could not see inside the Honda because its windows were tinted and the rear window was covered with snow. . . . The undercover officers followed behind Officer Lehman in their unmarked car. . . . While the Honda was waiting at a red light, Hinkle noticed police car lights coming up behind him, “from back … back about a mile or so.” Hinkle testified, “And as soon as I seen him, I was trying to get through the intersection. I didn’t know if the police officer was coming to pull me over or trying to . . . on a call that he had to get to.” Officer Lehman made the traffic stop and approached the driver’s side of the car. Sergeant Murray and Officer Webster approached the opposite side of the vehicle and asked the passengers to roll down their windows. When the windows were rolled down, Sergeant Murray and Officer Webster both smelled the odor of burnt marijuana coming from inside the car. . . .

Hinkle was brought to the rear of the Honda and asked by Sergeant Murray if there were any drugs on his person or in the vehicle. He answered in the negative and consented to a search of his person. That search revealed rolling papers and currency. Sergeant Murray next ordered Miner to exit the vehicle. He did as ordered and also consented to a search. The search of Miner uncovered a small baggie of marijuana. Miner was immediately placed under arrest for possession of marijuana. The appellant also was asked to exit the Honda. He complied. Officer Webster inquired whether he had anything illegal in his possession. The appellant responded in the negative. He then consented to a search of his person. No drugs or paraphernalia were recovered in that search. Officer Webster proceeded to search the Honda. Underneath the front passenger seat he recovered a white plastic bag that contained five individually wrapped baggies of marijuana… the white plastic bag was found directly under the appellant’s seat, on the floor of the car near the edge of the seat, in the area immediately behind and next to where the appellant’s legs had been when he was seated. The white plastic bag was opaque, and therefore had to be opened to see what was inside. None of the occupants of the vehicle claimed ownership of the white bag of marijuana at the time of the stop. . . .

At the police station, Officer Webster interviewed Miner and Hinkle. Miner told the officer he did not know how the white bag of marijuana got under the front passenger seat of the car. Hinkle told Officer Webster that the white bag of marijuana was not in the car until the appellant and Miner got in the car. Also, Hinkle told Officer Webster, “Brad [the appellant] has told me he sells dope.” Hinkle gave this information in written statement form, but refused to sign it. . . . Before trial, Hinkle gave the appellant’s counsel an affidavit in which he attested that the appellant was not aware of the white bag of marijuana underneath the seat prior to its seizure by the police; that the marijuana was in the car before the appellant entered it; and that he never told the appellant that the marijuana was there. . . .

Miner’s trial testimony was consistent with what he told Officer Webster on the night of the arrest. Miner said he did not know the white bag of marijuana was in the car, did not put it there, and did not see anyone else put it there. He first learned of its presence when the police removed it from the car. Hinkle testified at trial that the white bag of marijuana belonged to him and its presence in the car was unknown to the appellant. . . .

The appellant contends the evidence was legally insufficient to support his conviction of possession of marijuana with intent to distribute. His complaint focuses on the possession element of the crime. He argues that there was not ai “scintilla of evidence that he was even aware of the existence of the [marijuana], and the driver/owner of the car freely admitted that in fact he was the owner of the drugs.” He maintains that the evidence at most showed “proximity [on his part] to concealed drugs,” which standing alone cannot support a finding of knowledge of the presence and the nature of the contraband. . . .

Section 5–602 of the Criminal Law Article of the Maryland Code (2002) ( “CL”), prohibits the possession with intent to distribute a controlled dangerous substance, which under CL section 5–402(d), includes marijuana . . . defines “possess” to mean “to exercise actual or constructive dominion or control over a thing by one or more persons.” . . .

“The accused, in order to be found guilty, must know of both the presence and the general character and illicit nature of the substance. Of course, such knowledge may be proven by circumstantial evidence and by inferences drawn therefrom.” Dawkins v. State, 313 Md. 638, (1988).

The following factors are relevant to determining the issue of possession: 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. . . .

In Garrison, the police executed a search warrant for the house where the defendant lived with her husband. When they entered the house through the rear bedroom, they saw the husband in the adjacent bathroom, attempting to flush more than one hundred bags of heroin down the toilet. In the front bedroom, which had no access to the bathroom, and from which one could not see the bathroom, the police found the defendant in bed. There was no contraband in the front bedroom. In holding the evidence insufficient to sustain the defendant’s conviction for possession of heroin with intent to distribute, the Court noted: “The seized heroin was not in the plain view of [the defendant], nor was there a juxtaposition between her (in the front bedroom) and the contraband being jettisoned by her husband in the bathroom.” . . .

In Leach, the defendant was convicted of possession of phencyclidine (PCP). While executing a search warrant, the police found five individually wrapped packets of PCP in a closed container in the bedroom of the defendant’s brother’s apartment. They also found “three smoking pipes, and a green leather case holding drug cutting tools.” . . . The defendant had ready access to his brother’s apartment and gave the apartment as his address when he was booked by the police. The Department of Motor Vehicle records listed the apartment as the defendant’s address. The apartment had only one bed, however, and the defendant was not in the apartment when the police executed the search warrant. The Court of Appeals held that the fact that the defendant’s brother was the occupant of the apartment “precludes inferring that [the defendant] had joint dominion and control with [his brother] over the entire apartment and over everything contained anywhere in it.” . . . Thus, from the fact that the defendant had access to his brother’s apartment, one could not rationally infer that he knew that there were illegal drugs inside a closed container in his brother’s bedroom. . . .

The appellant relies heavily upon Taylor v. State. In that case, the defendant had rented a hotel room in Ocean City with four friends. When a police officer entered the room, the defendant was found lying on the floor, with his head turned away from the door, either asleep or feigning sleep. There were clouds of smoke in the room that smelled like marijuana. An officer questioned one of the other occupants of the room, Chris Myers, who retrieved a baggie of marijuana from a carrying bag and told the officer it was his. When the officer began searching the room, Myers produced a second baggie of marijuana, from another carrying bag. A subsequent search of the room by the police revealed more marijuana in a “multi-colored bag.” . . . Ultimately, the defendant was convicted of possession of the marijuana found in the bags. The Court of Appeals reversed the conviction, holding that a rational inference could not be drawn that the defendant had exercised a restraining or directing influence over marijuana that was concealed in personal carrying bags of another occupant of the room. Because [the defendant] was in joint rather than exclusive possession of the hotel room, his mere proximity to the contraband found concealed in a travel bag and his presence in a room containing marijuana smoke were insufficient to convict him. . . .

The location and nature of the white bag of marijuana, the appellant’s position in the car, the mutual use of marijuana and the marijuana-focused purpose of the trip on the night in question permitted an inference that the appellant knew of the marijuana’s presence in the car. During the ride and when the stop was made, the appellant was sitting in the front passenger seat. The bag was found under the front of that seat, which means, before he got out of the car at the officers’ direction, it was between and behind his legs, in a place under his immediate and primary control, by reach—just as the seat adjusting mechanism was under his control. The bag was readily accessible and movable by the appellant, but not by either of the other occupants of the car. To be sure, the white bag was not in the appellant’s plain view or direct line of sight when he was ordered out of the passenger seat of the Honda. Proof that contraband is in a person’s plain view or line of sight can be sufficient to show the person had knowledge of its presence; it is not necessary to prove knowledge, however. . . . Line of sight or plain view evidence is not essential to show knowledge of the presence of contraband, however. When an object is out of sight, it is not necessarily “out of mind.” . . .

Also of critical importance here, the evidence permitted an inference that the appellant was engaged in the mutual use and enjoyment of marijuana (the fourth Folk factor) and that the three occupants of the car were engaged in a marijuana focused common enterprise. There was direct evidence that marijuana was being smoked in a communal fashion in the passenger compartment of the small vehicle, with the windows rolled up. As Judge Moylan observed in Folk, it is common knowledge that people use marijuana by sharing a single cigarette and inhaling the smoke from the cigarette and the ambient smoke. . . .

Even if the blunt were not passed to the appellant, however, the evidence showed that he was participating in its use by sitting in the closed, small space and breathing marijuana smoke. Certainly, he knew by his senses of sight and smell that marijuana was in the car and was being used. The holding in Taylor does not preclude an inference of mutual use and enjoyment in this case. . . .

To the extent the white bag could be described as being hidden, then, its location tended to show that the person who hid it was the person who was sitting in the front passenger seat, who simply could reach to place it where it was found, and not one of the other two occupants of the car, who could not do so. These facts, pertaining to immediate and primary proximity, knowledge based on location and accessibility, the absence of a personal link between the contraband and a particular person, mutual use and enjoyment of contraband, and common enterprise, viewed in combination, permitted a reasonable inference that the appellant knew of the presence of the bag of marijuana, and its illicit character, and exercised dominion and control over it. . . . The amount of marijuana in the bag and the way it was packaged further permitted an inference of intent to distribute. . . .

For all of these reasons, we conclude that the evidence adduced at trial was sufficient to support a rational finding, beyond a reasonable doubt, that on the night in question the appellant was in possession of marijuana with the intent to distribute it. . . .

Court of Appeals of Maryland, Selections from “Larocca v. State,” 2003.

The underlying incident occurred on October 3, 2006. At trial, the court was informed that the parties disputed whether appellant was “driving” at that time, within the meaning of the relevant statutes. Appellant waived a jury trial and proceeded on an agreed statement of facts. The court read into the record the arresting officer’s report, as follows: “On 10/3/06, at approximately 04:47 hours—so that is 4:47 in the morning—I located an ‘86 Cadillac” something. “A two-door, grey,” with a Maryland registration that is identified here. I won’t read it. “On Baydale Drive north and College Parkway. The vehicle was stopped in a right turn lane with its headlights on, but they were dim.” “I had passed the vehicle approximately half an hour before in route to a B & E in progress. It had not moved from that position. I contacted the operator, who was asleep in the driver’s seat, and the vehicle keys were on the floor mat below the steering wheel. I woke him and detected a strong odor of an alcoholic beverage emanating from his breath, and his speech was slurred.” “He had trouble locating identification and handed me his wallet with a Maryland I.D. only. He couldn’t find a vehicle registration card. His movements were slow and not fluid. He exited his vehicle to attempt several field tests at the rear.” . . . According to the officer’s report, appellant failed the field sobriety tests and was arrested. He “refused the chemical test.” . . .

The defense argued that, under Atkinson v. State, 331 Md. 199 (1993), the evidence was insufficient to support a conviction for driving while impaired.

Appellant does not challenge the sufficiency of the evidence to establish that he was intoxicated, nor does he dispute that, at the time in question, his license had been revoked. His sole claim on appeal is that the evidence set forth in the agreed statement of facts was insufficient to support the finding that he was “driving,” because, argues appellant, he was not in “actual physical control” of an operable vehicle. We disagree.

Transp. § 11–114 defines “drive” as follows: “to drive, operate, move, or be in actual physical control of a vehicle” (emphasis added). . . . In Atkinson v. State, upon which appellant relies, the Court examined the meaning of the phrase “actual physical control.” There, a sheriff’s deputy found the defendant inebriated and asleep in his vehicle, which was parked on the shoulder of a road. The keys were in the ignition and the engine was off. In reasoning equally applicable to the case at bar, the Atkinson Court analyzed the definition of “drive” in § 11–114 and made the following observation: “[D]rive” (as a definition), “operate” and “move” are not at issue here, for each of these terms clearly connotes either some motion of the vehicle or some physical movement or manipulation of the vehicle’s controls. To “move” a vehicle plainly requires that the vehicle be placed in motion. . . . “The term ‘driving’ . . . mean[s] . . . steering and controlling a vehicle while in motion; the term ‘operating,’ on the other hand, is generally given a broader meaning to include starting the engine or manipulating the mechanical or electrical devices of a standing vehicle.”

The Court considered the meaning of “actual physical control” of a vehicle. It declined to adopt the majority view, which is that “ ‘[a]s long as a person is physically or bodily able to assert dominion in the sense of movement by starting the car and driving away, then he has substantially as much control over the vehicle as he would if he were actually driving it.’ “

Instead, the Atkinson Court determined that the Legislature did not intend to punish criminally an intoxicated person who uses his vehicle merely to “sleep it off.” Rather, it concluded that the General Assembly “intended to differentiate between those inebriated people who represent no threat to the public because they are only entering their vehicles as shelters until they are sober enough to drive and those people who represent an imminent threat to the public by reason of their control of a vehicle.”

In this regard, the Court identified six non-exhaustive factors relevant in determining whether an individual in a vehicle has “actual physical control” over the vehicle, or is merely using it as shelter: 1) whether or not the vehicle’s engine is running, or the ignition on; 2) where and in what position the person is found in the vehicle; 3) whether the person is awake or asleep; 4) where the vehicle’s ignition key is located; 5) whether the vehicle’s headlights are on; 6) whether the vehicle is located in the roadway or is legally parked.

The Atkinson Court seemed to suggest that the factors are not all of equal weight, stating: “Perhaps the strongest factor … is whether there is evidence that the defendant started or attempted to start the vehicle’s engine.” Further, it explained that, “once an individual has started the vehicle, he or she has come as close as possible to actually driving without doing so.” . . . Of import here, the Court also said that “the location of the vehicle can be a determinative factor in the inquiry because a person whose vehicle is parked illegally or stopped in the roadway is obligated by law to move the vehicle.” . . .

Applying the factors to the case before it, the Atkinson Court observed that, although the defendant was in the driver’s seat and the keys were in the ignition, the vehicle was legally parked, the ignition was off, and the defendant was fast asleep. On balance, the Court concluded that there was reasonable doubt that the defendant was in “actual physical control” of his vehicle.

In the instant case, appellant argues that the circuit court misapplied the Atkinson factors and, when properly considered, the factors compelled his acquittal. He observes that the Atkinson factors are in numerical equipoise: in favor of appellant are the facts that appellant was asleep; the key was not in the ignition; and the headlights were on but were “dim”; in the State’s favor, appellant was in the driver’s seat, the headlights were on; and the vehicle was located in the roadway.

According to appellant, the “critical fact” here is that his headlights had been on for at least a half-hour (between the time the officer initially saw appellant’s vehicle and the time the officer returned to investigate), without the engine running, which would have depleted the battery in his vehicle. In appellant’s view, the fact that his headlights had grown dim suggests that, under these circumstances, there was “considerable doubt” as to whether “the car could have been started and driven at the time charged.”

The State notes that “this patently was not a situation where Dukes had taken shelter in the car, off the public roadway; quite the contrary, the vehicle was stopped in the turn lane of a public street.” Under Atkinson, argues the State, this is a “determinative factor,” because appellant was obligated by law to move his vehicle out of the roadway, “and because of this obligation could more readily be deemed in ‘actual physical control’ than a person lawfully parked on the shoulder or on his or her own property.”

Moreover, the court recognized that “the car had been driven there. So presumably had been engaged and the engine had been running. It is not a situation where the car had been sitting for a week or so without being started.” Under these circumstances, we cannot say the judge was clearly erroneous in concluding that the car was operable at the time of appellant’s arrest.

Under the current statute, a person commits the crime of “driving” while intoxicated when he is intoxicated while in “actual physical control” of his vehicle, even if it is “left to conjecture” that he actually “drove” the vehicle, in the narrower sense, at some earlier time. As the State correctly points out, under Atkinson the fact that appellant’s vehicle was stopped in the roadway was properly a “determinative factor” in the “actual physical control” analysis. The trial court recognized this when it said: “Quite candidly, the public is at risk just by the mere fact that he is sitting there and perhaps somebody might [hit] him.” In any event, the Atkinson Court opined that, even if a defendant was not in “actual physical control” of a vehicle at the time of his arrest, he could still be convicted of driving while intoxicated if circumstantial evidence proved beyond a reasonable doubt that he had driven the vehicle while intoxicated at an earlier time. A person may also be convicted under § 21–902 if it can be determined beyond a reasonable doubt that before being apprehended he or she has actually driven, operated, or moved the vehicle while under the influence. . . .

Thus, our construction of “actual physical control” as permitting motorists to “sleep it off” should not be misconstrued as encouraging motorists to try their luck on the roadways, knowing they can escape arrest by subsequently placing their vehicles “away from the road pavement, outside regular traffic lanes, and . . . turn[ing] off the ignition so that the vehicle’s engine is not running.

Here, the fact that appellant was intoxicated and asleep in the driver’s seat of a vehicle that was stopped in the roadway, with its lights on, is powerful circumstantial evidence that appellant drove the vehicle to that location while intoxicated.

Court of Special Appeals of Maryland, Selections from “Dukes v. State, 178 Md. App. 38,” 2008.