Opinion
Court of Appeals No. A-9059.
February 7, 2007.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mark I. Wood and Randy M. Olsen, Judges, Trial Court No. 4FA-04-1495 CR.
David K. Allen, Assistant Public Advocate, Fairbanks, and Joshua Fink, Public Advocate, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. MÁrquez, Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
MEMORANDUM OPINION AND JUDGMENT
Fairbanks Police Officer Bruce Barnett received an anonymous tip that three men, including Antonio B. Williams and Teffin C. Goss II, were transporting cocaine from Anchorage to Fairbanks in a green Mercury Mountaineer. Barnett and other officers set up surveillance outside of Fairbanks on the Parks Highway. As anticipated, a green Mercury Mountaineer passed by the police heading toward Fairbanks. The police stopped the vehicle and when Barnett approached, he smelled the odor of marijuana coming from the Mercury. Goss was in the driver's seat. Officer Barnett detained the individuals in the vehicle (Williams, Goss, and a Bobby Sims) and applied for a search warrant.
When the police executed the warrant, they discovered 361.7 grams of cocaine, three handguns, ammunition, and some marijuana. The cocaine was discovered in a duffel bag found in the car that was identified as Williams's suitcase. Goss admitted that the .45 caliber handgun found in the center console beside the driver's seat was his.
Based on these events, Goss was convicted at trial of third-degree misconduct involving a controlled substance and second-degree misconduct involving weapons.
AS 11.71.030(a)(1) AS 11.61.195(a)(1), respectively.
In this appeal, Goss argues that the superior court erred in denying the motion to suppress the evidence obtained during the search of the vehicle because the police unlawfully stopped the Mercury. But we reject this claim because we conclude that the police had reasonable suspicion to stop the vehicle Goss was driving.
Goss also argues that the superior court erred in denying his motion for a judgment of acquittal. Goss claims that there was insufficient evidence to support the convictions. But viewing the evidence in the light most favorable to the verdicts, a fair-minded juror exercising reasonable judgment could conclude that the State had proven the charges beyond a reasonable doubt. Background facts and proceedings
See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).
On May 4, 2004, Barnett received a telephone call from an anonymous informant. The informant reported that three individuals — Williams, Goss, and a third person — were distributing cocaine and marijuana in the Fairbanks area. The informant stated that the trio rented vehicles under the name "Dequan Thomas" to transport drugs from Anchorage. According to the informant, the three traveled between Anchorage and Fairbanks once a week.
The informant called Officer Barnett again the next day and reported that Williams, Goss, and a third unidentified male had rented a light green Mercury SUV under the name "Dequan Thomas" and were currently in Anchorage. The informant stated that the men would be bringing "a large amount" of cocaine back from Anchorage for distribution in Fairbanks.
Barnett contacted Budget Rent-A-Car in Fairbanks and asked about the rented SUV and whether Budget had rented any vehicles to a Dequan Thomas. The employee recognized the name and said that Dequan Thomas had previously rented vehicles from Budget and probably used the vehicles for trips from Fairbanks to Anchorage and back because the mileage was consistent with these trips. The employee said that Budget did not rent Mercury Mountaineers but that Hertz did.
Barnett contacted Hertz, but Hertz advised him that they would not release rental information without a subpoena. Barnett contacted Agent William Stone at the federal Drug Enforcement Agency, and Stone obtained a subpoena for Hertz's rental records. Barnett and Agent Stone obtained a copy of the rental agreement between Hertz and Dequan Thomas under the subpoena. According to the rental agreement, Dequan Thomas had rented a light green Mercury Mountaineer (license plate number EMT 565) for a period beginning on April 28, 2004, and ending at approximately 7:00 p.m. on May 6, 2004. Officer Barnett checked the vehicle registration in the Alaska Public Safety Information Network computer and confirmed that the Mercury was light green. Barnett also searched the state computer for Dequan Thomas's name and address but could not find either because he did not have Thomas's date of birth.
On May 5, 2004, the informant left a message on Officer Barnett's answering machine. According to the message, the informant had received a call from one of the suspects stating that the three left Anchorage at 4:30 p.m. and were on their way back to Fairbanks. The informant reported that the individual who called said they had the cocaine. In the same conversation, the informant told Officer Barnett that the suspects had used a VISA card to pay for the rental; the rental agreement Barnett had received from Hertz also showed that the renter used a VISA card.
The police calculated the amount of time it would take the men to drive from Anchorage to Fairbanks. They set up surveillance along the Parks Highway. Within the time period that they had calculated, they saw three men pass by in the light green Mercury Mountaineer rented from Hertz. When the police stopped the Mercury, Officer Barnett approached and noticed the odor of marijuana coming from the car.
The police brought a drug-sniffing dog to the car and the dog gave an alert which indicated the presence of drugs in the Mercury. Barnett detained the individuals, identified as Williams, Goss, and Bobby Sims, and obtained a search warrant for the Mercury. The police found cocaine, marijuana, handguns, and ammunition when they executed the warrant.
The grand jury indicted Williams, Goss, and Sims for misconduct involving a controlled substance in the third degree (possession of cocaine with intent to distribute) and misconduct involving weapons in the second degree (possession of a firearm during the commission of a felony drug offense).
All three individuals joined in a motion to suppress the evidence seized from the Mercury. Superior Court Judge Mark I. Wood conducted an evidentiary hearing and denied the motion to suppress.
Sims and Goss went to trial. At the conclusion of the State's case, Goss moved for a judgment of acquittal, arguing that the State had not proven that he had the requisite mental state to be guilty of either offense because the State had not shown that he knew Williams had cocaine in his suitcase. Superior Court Judge Randy M. Olsen denied the motion, and Goss was convicted by the jury.
Williams entered a Cooksey plea. See Williams v. State, 139 P.3d 1282 (Alaska App. 2006).
The police had reasonable suspicion to stop the Mercury
In order to conduct an investigatory stop under Alaska law, the police must have reasonable suspicion that imminent public danger exists or that serious harm to persons or property has recently occurred. Suspicion that an individual is transporting controlled substances for commercial distribution satisfies this test.
See Coleman v. State, 553 P.2d 40, 46 (Alaska 1976); Pooley v. State, 705 P.2d 1293, 1307 (Alaska App. 1985).
Pooley, 705 P.2d at 1307.
In Williams v. State, a case involving Goss's co-defendant, we upheld Judge Wood's decision denying the motion to suppress. We reaffirm our decision on that issue in this case. The police obtained sufficient corroboration of the informant's tip to authorize the stop of the Mercury. That information together with the officers' observations after stopping the Mercury established probable cause for the search warrant.
139 P.3d 1282 (Alaska App. 2006).
Sufficient evidence supports the convictions
Goss argues that the evidence presented at trial was insufficient to convict him of the charges. Goss contends that the State failed to establish that he knew that he was transporting cocaine because it was found in Williams's duffel bag. Therefore, Goss contends, he did not have the requisite mental state for misconduct involving a controlled substance in the third degree. Goss also argues that the evidence did not show that his possession of the handgun in the console "aided, advanced, or furthered the commission" of the felony drug offense.
Murray v. State, 54 P.3d 821, 824 (Alaska App. 2002).
When we review the denial of a motion for judgment of acquittal, we must decide whether fair-minded jurors exercising reasonable judgment could conclude that the State had proven the charges beyond a reasonable doubt.
Dorman, 622 P.2d at 453.
At trial, the court sustained a defense hearsay objection to evidence of the informant's tips to the police. As a result of the court's ruling, the jury did not hear the details of the investigation that led the police to the stakeout on the Parks Highway. However, the evidence presented in this case and the reasonable inferences from that evidence are sufficient to uphold Goss's convictions. Goss was driving the Mercury on the Parks Highway back to Fairbanks following an overnight trip to Anchorage. His .45 caliber handgun was in the console beside him along with another handgun. Williams and Sims accompanied Goss on this trip in the rented Mercury to Anchorage and back. The police noticed marijuana in the Mercury, and after obtaining a search warrant for the Mercury, discovered three handguns, cocaine with a value in the tens of thousands of dollars, and the marijuana. In a black suitcase in the back of the Mercury, the police found .45 caliber ammunition and a photograph showing Goss and an unidentified female. On the other side of the rear compartment was a black duffel bag containing the cocaine and another handgun. There was no other luggage. Williams had $886 in cash on his person. Neither Goss nor Sims had any cash. The Hertz rental agreement was in the Mercury. During the six days the Mercury was rented, it had traveled just over two thousand miles. Finally, according to the police, most of the cocaine brought to Fairbanks comes through Anchorage.
While the State did not have direct evidence that Goss had knowledge of the cocaine in the duffel bag or that Goss intended to aid, advance, or further the transportation or distribution of the cocaine when he possessed the handgun in the console, the jury was entitled to rely on circumstantial evidence and reasonable inferences from all the evidence when deciding whether the State had proven the case. From our review of the evidence, we conclude that a juror exercising reasonable judgment could conclude that the State had proven both charges.
Conclusion
The judgment of the superior court is AFFIRMED.
I agree with my colleagues that the police could properly stop the vehicle that Goss was driving. The information known to the officers — the anonymous tip that three men were transporting cocaine from Anchorage to Fairbanks in a rented green Mercury Mountaineer, combined with the officers' subsequent independent corroboration of significant facets of this tip — established a reasonable suspicion that this vehicle was being used to transport controlled substances for illicit commercial purposes.
And, if all of this information had been presented to the jury at Goss's trial, it might have been sufficient to prove Goss's complicity in this drug-dealing scheme. But the State came to Goss's trial unprepared. When the prosecutor tried to offer this information ( i.e., the information supporting the investigative stop) through the hearsay testimony of a police officer, the defense raised a hearsay objection, and the trial judge sustained the objection. Following this adverse ruling, the prosecutor failed to call any other witnesses to fill in this part of the State's case.
Thus, the only evidence that the jury heard was: (1) the police stopped a vehicle on the highway, (2) the vehicle was found to contain cocaine and marijuana, plus handguns and ammunition, (3) Teffin Goss was driving this vehicle, and (4) Goss admitted that he owned the .45 caliber handgun found in the center console of the vehicle.
One could certainly speculate, based on Goss's presence in the vehicle and his ownership of the handgun, that he was an accomplice in the venture to sell the cocaine. But this evidence was insufficient to prove Goss's complicity beyond a reasonable doubt.
The Alaska Supreme Court confronted a similar situation in Egner v. State, 495 P.2d 1272 (Alaska 1972). In Egner, the police intercepted a postal package that contained "a cannabis material". After ascertaining the contents of the package, the police resealed the package and took it to the post office — and waited for someone to pick it up. Egner's two co-defendants picked up the package. Under police surveillance, Egner and his co-defendants spent several hours driving around Ketchikan. Egner was doing the driving. When the police finally stopped the vehicle, the package was found opened on the back seat of the car, and Egner's friends were found to have marijuana on their persons, but none was found on Egner's person.
Egner, 495 P.2d at 1273.
Id. at 1273-74.
The State contended that this evidence was sufficient to prove Egner's complicity. The supreme court disagreed:
Mere presence at the scene [of illegal dru g possession], alone, is insufficient to prove knowing control of the prohibited substance. Here[,] the state's evidence did not show by whom the package had been opened, when the package had been opened, or that Egner was in the car when the package was opened. Additionally, the state's evidence did not show that[,] at any pertinent time[,] Egner [had] knowledge of the contents of the package [and either] exercised or had the right to exercise control over the package. Given the gaps in the [government's] proof, we hold the evidence [presented at Egner's trial] insufficient to prove beyond a reasonable doubt Egner's knowing control of hashish or marijuana.
Egner, 495 P.2d at 1274.
The supreme court's discussion of this point has obvious relevance to Goss's case.
Even though Egner's friends picked up the package from the post office, and even though Egner then drove his friends around Ketchikan for several hours with the package in the car, and even though the package was lying open on the back seat when the police finally stopped the vehicle, the supreme court nevertheless held that this evidence was insufficient to prove two major elements of the State's case: (1) that Egner had knowledge of the contents of the package (before the police arrived and seized it), and (2) that Egner, having knowledge of the contents, either exercised or had the right to exercise control over the package.
With respect to the charge of possessing cocaine with intent to distribute, Goss's case presents an analogous situation. The State proved that Goss and his two co-defendants spent several hours in a car, traveling from Anchorage to Fairbanks. Goss was the driver of this car. In the car was a duffel bag containing cocaine, but the duffel belonged to Goss's co-defendant, Antonio W illiams, and there was no evidence that Goss had knowledge of the contents of the duffel. Moreover, even if Goss knew what Williams had in the duffel, there was no evidence that Goss exercised (or had the right to exercise) any control over the duffel.
The circumstances were certainly suspicious — just as the circumstances in Egner were suspicious. But our supreme court held that the facts of Egner were not legally sufficient to support Egner's conviction for knowing possession of controlled substances. With respect to the cocaine possession charge, I see no convincing way to distinguish Goss's case. Accordingly, I conclude that Goss's convictions must be reversed.
I acknowledge that, with respect to the marijuana found in the vehicle, the situation might reasonably be viewed differently. The bags of marijuana were located in the center console of the car. The console also contained a .45 caliber handgun. Goss was driving the car ( i.e., he was sitting adjacent to the center console), and he was the owner of the .45 caliber handgun. Based on the fact that Goss was the driver of the vehicle, that the marijuana was in the console next to him, and that Goss's handgun was lying in the console as well, reasonable jurors could conclude (1) that Goss knew that the console contained marijuana and (2) that Goss exercised (or had the right to exercise) control over that marijuana. However, neither Goss nor his two co-defendants were charged with any criminal offense based on the presence of the marijuana in the vehicle.