Opinion
No. 4-304 / 03-0807.
September 9, 2004.
Appeal from the Iowa District Court for Polk County, Douglas F. Staskal (motion to suppress) and Glenn E. Pille (trial), Judges.
Frederick Carter appeals following his conviction for possession of cocaine with the intent to deliver. REVERSED AND REMANDED WITH INSTRUCTIONS.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, John Sarcone, County Attorney, and Gary Kenville, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
Frederick Carter appeals following his conviction for possession of cocaine with the intent to deliver, in violation of Iowa Code section 124.401(1)(c)(3) (2001). We reverse and remand the case for the entry of an order of dismissal.
I. Background Facts and Proceedings.
On December 17, 2002, Des Moines police officer Sean Wissink and Sergeant Jeff Edwards noticed a license plate illegally displayed inside the windshield of a vehicle as they patrolled 19th and Clark. The officers attempted to stop the vehicle so they could issue a citation. However, the vehicle continued to M.L.K. Boulevard, going southbound across three lanes of traffic. Officer Wissink said he observed the driver making movements with his right hand around the center console, to the extent that his head dipped below the dashboard. Sergeant Edwards, however, did not observe any passenger movements inside the vehicle during the pursuit. The vehicle eventually struck the curb before coming to a stop.
The driver, Frederick Carter, exited the vehicle quickly and Officer Wissink handcuffed him before proceeding with the investigation because he considered him a "flight-or flight risk." Sergeant Edwards took charge of and arrested the passenger, Sidney Saunders, on outstanding warrants. Sergeant Edwards stated that he was told by either Carter or Saunders that the reason the vehicle struck the curb was because it died when they tried to turn the corner. While Sergeant Edwards watched the two men, Officer Wissink looked in the open door of the Blazer, where he could see about two inches of a sandwich baggie sticking out from underneath the ashtray on the center console. Officer Wissink lifted the ashtray and found six individually wrapped rocks of crack cocaine inside the baggie. Mr. Carter expressed surprise at the discovery of the drugs and denied they belonged to him.
The State charged Carter with possession of a controlled substance with the intent to deliver. A motion to suppress evidence of the crack cocaine found in the car was filed and subsequently denied by the district court. The case was tried to the court and Carter was found guilty of possession of a controlled substance with the intent to deliver. The court sentenced him to an indeterminate term of incarceration not to exceed ten years and imposed a $1000 fine. Carter appeals, contending, first, that the officers lacked probable cause to search the vehicle and, second, that the evidence is insufficient to support the conviction.
II. Sufficiency of the Evidence.
We first address Carter's sufficiency of the evidence challenge, which we review for correction of errors of law. State v. Yeo, 659 N.W.2d 544, 547 (Iowa 2003). We will uphold the verdict if there is substantial evidence to support it. Id. Evidence is substantial if it would convince a rational trier of fact that the defendant is guilty beyond a reasonable doubt. Id. We review the record in the "light most favorable to the State, including legitimate inferences and presumptions that may fairly and reasonably be deduced from the evidence in the record." State v. Webb, 648 N.W.2d 72, 76 (Iowa 2002). The State has the burden to "prove every fact necessary to constitute the crime with which the defendant is charged." Id. "The evidence must raise a fair inference of guilt and do more than create speculation, suspicion, or conjecture." Id. (citing State v. Hamilton, 309 N.W.2d 471, 479 (Iowa 1981)).
Carter maintains there is insufficient evidence to support his conviction of possession of the cocaine. In controlled substance prosecutions, possession can be either actual or constructive. State v. Maghee, 573 N.W.2d 1, 10 (Iowa 1997). Actual possession requires the substances to be found on the defendant's person. State v. Atkinson, 620 N.W.2d 1, 3 (Iowa 2000). Possession is constructive where a defendant has knowledge of the presence of the drugs and has the authority or right to maintain control of them. State v. Cashen, 666 N.W.2d 566, 569 (Iowa 2003). Constructive possession is established by showing that the (1) accused exercised dominion and control over the contraband, (2) had knowledge of its presence, and (3) knowledge the material was a narcotic. Atkinson, 620 N.W.2d at 3; State v. Reeves, 209 N.W.2d 18, 21 (Iowa 1973).
The State maintains that based on Carter's furtive movements prior to the stop, as observed by Officer Wissink, a fact finder could reasonably conclude that Carter was in actual possession of the cocaine, even though when discovered, it was not on his person, but rather under the car's ashtray. We disagree. Actualpossession occurs when a defendant has "direct physical control" over the drugs. Cashen, 666 N.W.2d at 569. Here, the cocaine was not found on Carter's person, but rather, it was at least partially obscured under the vehicle's ashtray. The fact the cocaine was located near Carter does not support an inference that he was in actual possession of the contraband
We thus turn to the question of constructive possession. Our supreme court has acknowledged that when drugs are found in a motor vehicle, knowledge by the occupants as to the presence and nature of the contraband might erroneously be assumed based simply on their proximity to the drugs. Atkinson, 620 N.W.2d at 3. In Atkinson, the court reviewed the analytical framework employed when contraband is found in a vehicle occupied by more than one person, and suggested the factors to be considered are:
(1) was the contraband in plain view, (2) was it with defendant's personal effects, (3) was it found on the same side of the car seat as the defendant or immediately next to him, (4) was the defendant the owner of the vehicle, and (5) was there suspicious activity by the defendant.
Id. at 5. In addition, other evidence on this issue could include: incriminating statements made by the defendant, incriminating actions of the defendant upon the police's discovery of drugs among or near the defendant's personal belongings, the defendant's fingerprints on the packages containing the drugs, and any other circumstances linking the defendant to the drugs. Cashen, 666 N.W.2d at 571.
"The existence of constructive possession turns on the peculiar facts of each case." Webb, 648 N.W.2d at 78 (citing State v. Harris, 647 So.2d 337, 339 (La. 1994)). In the present case, when officers stopped Carter's vehicle, he was one of two individuals in the front seat. Clearly, knowledge of the presence of the cocaine and the authority or right to maintain control of it, that is, constructive possession, could not be inferred by the fact finder from the defendant's joint occupancy of the vehicle, but had to be established by other proof. See State v. Bash, 670 N.W.2d 135, 138 (Iowa 2003) (citing Webb, 648 N.W.2d at 79). We must therefore turn to a discussion of whether "other proof" was sufficient in this case to support a finding of Carter's constructive possession.
Officer Wissink testified that he observed Carter "making movements with his right hand [and that] his right hand went all the way down to the floorboard, causing his head to go down so he wasn't viewing the road." Carter's movement towards the location of the drugs alone clearly is not sufficient to establish the dominion and control or the knowledge necessary for constructive possession. See Atkinson, 620 N.W.2d at 4 (citing Hurtado v. State, 881 S.W.2d 738 (Tex.Crim.App. 1994) ("[F]urtive movements or gestures alone are insufficient evidence to prove guilty."))
On the question of furtive movements, we find instructive the facts of Atkinson, where after pulling over a vehicle in which she was a passenger, officers observed the defendant "constantly moving in the front seat, `reaching for something.'" Id. at 2. Drugs were later discovered in a fanny pack under the driver's seat. Id. The court found those "suspicious" activities insufficient to support an inference of constructive possession. Id. at 5. We are not able to conclude that Carter's movements observed by only one of the two arresting officers were quantitatively or qualitatively more suspicious than Atkinson's. Based on our supreme court's guidance in Atkinson, we believe Carter's furtive movements are insufficient to support an inference of constructive possession.
Carter was not the owner of the vehicle. While he was the driver of the vehicle, Iowa does not appear to have adopted a rule followed in some jurisdictions which recognize a rebuttable presumption of possession if the defendant is the owner or operator of the vehicle. Id. at 3 (citing 25 Am. Jur. 2d Drugs and Controlled Substances § 149, at 335 (1996)). Further, while the officer did find the cocaine under the ashtray in the front seat's center console in this case, "close physical proximity to contraband . . . is insufficient initself to constitute dominion and control," Atkinson, 620 N.W.2d at 4. In Atkinson, the defendant was seated in the front passenger seat and the drugs were found under the driver's seat. Id. In Cashen, officers found a baggie of marijuana wedged in the rear seat on the side immediately next to where the defendant had been seated. Cashen, 666 N.W.2d at 568. Such proximity to the contraband in these recent cases has been found insufficient to establish constructive possession. Accordingly, we conclude Carter's location in the driver's seat of the vehicle was in no closer proximity to the contraband than the passenger's, and thus the defendant's proximity to the drugs was insufficient to engender an inference of constructive possession.
The State contends a finding of Carter's constructive possession was supported in the record by evidence that the contraband was in plain view. Atkinson, 620 N.W.2d at 3. Officer Wissink testified that when he looked into the vehicle through the driver door, he "observed about two inches of sandwich baggies sticking out from underneath the ashtray on the center console." Carter contends the officer's observation was insufficient to generate an inference of constructive possession because only a portion of the baggie, and not the contraband itself, was visible. We agree. Although a baggie was in plain view, its contents were not. See Chappell v. State, 457 So.2d 1133, 1135 (Fla.App. Dist.Ct.App. 1984) (holding drugs that were hidden in a manila envelope were not in plain view for purposes of a constructive possession analysis). We thus conclude the officer's observation of the baggy did not support an inference of constructive possession of the contraband
Finally, it is significant that Carter made no incriminating statements; in fact, he denied the cocaine was his; there was no evidence his fingerprints were on the package containing the drugs; and there are no other circumstances linking Carter to the drugs. See Cashen, 666 N.W.2d at 571.
Accordingly, we conclude the evidence in this case was insufficient to support a finding beyond a reasonable doubt that Carter was in constructive possession of the contraband We therefore need not address Carter's contention that the court erred in denying his motion to suppress. We reverse the judgment of the district court and remand the case for the entry of an order of dismissal.