Opinion
No. 61894-6-I.
May 4, 2009.
Appeal from a judgment of the Superior Court for Whatcom County, No. 07-1-01621-2, Steven J. Mura, J., entered June 16, 2008.
Reversed and remanded by unpublished opinion per Appelwick, J., concurred in by Schindler, C.J., and Dwyer, J.
UNPUBLISHED OPINION
Goodlow appeals his conviction for possession of a controlled substance. He specifically challenges the trial court's denial of his motion to suppress, contending his arrest was not supported by probable cause. Probable cause based on constructive possession requires more than mere proximity to the drug. Because the record does not contain evidence other than mere proximity to link Goodlow to the drugs, we reverse the conviction and remand for dismissal with prejudice.
FACTS
On November 2, 2007, Bellingham Police Officer Claudia Murphy initiated a traffic stop of a car driven by Aleksey Kirichkov, after running a routine license check and determining he was driving on a suspended license. Because Kirichkov continued to drive for two blocks before stopping his car, Officer Murphy became suspicious and watched both Kirichkov and Marcel Goodlow, the front seat passenger, carefully. She did not see furtive movements from either occupant. Goodlow continued to sit in the passenger seat as back up officers arrived. Officer Murphy placed Kirichkov under arrest. Goodlow was then allowed to leave the scene.
The result of the routine license check showed that the registered owner had a suspended driver's license. The driver matched the general description gleaned from the driver's license return from the license plate check.
In a search of Kirichkov's car incident to his arrest, another officer found two ecstasy pills in the crease of the passenger seat cushion. Kirichkov denied ownership of the pills, and stated that there had been a number of people in his car that day. Officer Murphy alerted other officers that there was probable cause to arrest Goodlow for possession of ecstasy, because he was the last person to sit on top of the pills.
On November 3, police located Goodlow and arrested him for possession of the two tablets found in Kirichkov's passenger seat. In a search incident to arrest, officers found six additional ecstasy pills in Goodlow's coat pocket. The State charged Goodlow with two counts of possession of a controlled substance.
The first charge pertained to the ecstasy found in Kirichkov's car, in the crease of the passenger seat, where Goodlow sat when Officer Murphy pulled them over on November 2. The second charge pertained to the ecstasy found in Goodlow's pocket after he was arrested and searched the following day.
Goodlow moved to suppress all evidence related to count two, arguing that the arrest was unlawful for lack of probable cause. The court denied the motion. After a bench trial, the court found him not guilty on the first charge, but guilty on the second charge, and imposed a standard range sentence of 12 months and one day. Goodlow timely appealed.
ANALYSIS
Goodlow contends that police lacked probable cause to arrest him for possession of a controlled substance and that the trial court, therefore, erred by denying his motion to suppress the six ecstasy tablets discovered in the search incident to arrest on November 3.
We review findings of fact on a motion to suppress under the substantial evidence standard. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994). Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding. Id. at 644. Unchallenged findings of fact are verities on appeal. State v. Acrey, 148 Wn.2d 738, 745, 64 P.3d 594 (2003). We review conclusions of law in an order pertaining to suppression of evidence de novo. State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996).
Under the Fourth Amendment to the U.S. Constitution and article 1, section 7 of the Washington Constitution, a warrantless arrest must be supported by probable cause. State v. Bonds, 98 Wn.2d 1, 8-9, 653 P.2d 1024 (1982). An officer has probable cause to arrest a person when the facts and circumstances within the arresting officer's knowledge are sufficient to cause a person of reasonable caution to believe a crime has been committed. State v. Graham, 130 Wn.2d 711, 724, 927 P.2d 227 (1996). When officers pull over a vehicle with multiple occupants, individualized probable cause must support the arrest of each person. State v. Grande, 164 Wn.2d 135, 138, 187 P.3d 248 (2008).
To support the existence of probable cause in a drug possession case, the facts and circumstances must suggest either actual or constructive possession. State v. Summers, 107 Wn. App. 373, 389, 28 P.3d 780, 43 P.3d 526 (2001). Actual possession requires the item to be in the physical custody of the person charged. State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). Because the two ecstasy tablets were not in Goodlow's physical custody, but rather in the crevice of the seat on which he sat, police lacked probable cause based on actual possession.
The State does not argue that sitting on top of the ecstasy tablets constituted actual possession.
Constructive possession occurs when the person has dominion and control over the item enabling that person to immediately convert the item to actual possession. State v. Jones, 146 Wn.2d 328, 333, 45 P.3d 1062 (2002). However, knowledge of the presence of a drug is by itself insufficient to prove dominion and control. State v. George, 146 Wn. App. 906, 923, 193 P.3d 693 (2008) (citing State v. Davis, 16 Wn. App. 657, 659, 558 P.2d 263 (1997)). In addition, mere proximity to the contraband is insufficient to show constructive possession. State v. Spruell, 57 Wn. App. 383, 388-89, 788 P.2d 21 (1990); State v. McCaughey, 14 Wn. App. 326, 329, 541 P.2d 998 (1975).
The unchallenged findings of fact and uncontroverted testimony show: (1) during the traffic stop, Officer Murphy did not notice any furtive movements from either occupant; (2) police found two ecstasy tablets on the front passenger bucket seat after the officers allowed Goodlow to leave the scene; (3) Kirichkov said that he did not know who left the tablets on the seat; (4) Kirichkov said that there were a number of other people in his car that day. Goodlow contends that these facts show only mere proximity.
In the cases in which there was probable cause that a vehicle occupant had constructive possession of a drug, courts relied on circumstantial evidence to establish a connection between the drug and the occupant beyond mere proximity.
In State v. Morgan, 78 Wn. App. 208, 210, 896 P.2d 731 (1995), an officer noticed two men standing by a truck parked in public park after it had closed. On the hood of the truck, the officer saw water, aluminum foil, and a pile of white powder. Id. The officer arrested the driver and the passenger, and Morgan, the passenger, appealed, arguing that the officer did not have probable cause to arrest him for joint constructive possession of drug paraphernalia. Id. at 211. The court rejected Morgan's argument, highlighting that the drugs were located in plain view of both the passenger and the driver and that nothing denied Morgan access — the drugs were not hidden in the trunk or underneath the seat where Morgan might not have had knowledge of the drugs. Id. at 213.
Unlike in Morgan, the pills were not in plain view. Further, there is no evidence in the record that Goodlow knew of the tablets, whereas, in Morgan, the passenger undoubtedly knew of the cocaine, as it was spread across the hood of the trunk as he stood nearby.
In State v. Huff, 64 Wn. App. 641, 643, 826 P.2d 698 (1992), an officer observed a swerving car and initiated a traffic stop. The driver did not immediately respond, and the officer observed the front seat passenger looking back at the officer and making furtive movements. Id. When Huff, the driver, finally pulled to a stop, the officer approached the car and smelled methamphetamine emanating from the car. Id. After arresting Huff, the officer arrested Morley, the passenger. Id. at 644. The court found that the officer had sufficient probable cause to arrest her for possession of a controlled substance, based on her furtive gestures, the smell of methamphetamine coming from her and the car, and her lies about her identity. Id. at 648.
Huff had standing to challenge the validity of Morley's arrest. Huff, 64 Wn. App. at 645.
Goodlow's behavior as a passenger is in direct contrast to Morely's, distinguishing Huff from the current case. Unlike Morley, Goodlow made no furtive movements. Nor did he lie to the police about his identity. Rather, he cooperated and was permitted to leave the scene.
In State v. Mathews, 4 Wn. App. 653, 656-57, 484 P.2d 942 (1971), where an occupant seated in the back seat of a vehicle was found to have constructively possessed heroin located under the carpet in the back seat, the court relied on strong circumstantial evidence to establish constructive possession. The defendant was a known heroin user, none of the other occupants claimed possession or knew about the heroin, and heroin paraphernalia was found in both the defendant's coat pocket and in a bag beneath the right back seat occupied by the defendant. Id. at 657; see also State v. George, 146 Wn. App 906, 921-22, 193 P.3d 693 (2008) (distinguishing the circumstantial evidence in Mathews on the same grounds).
Mathews challenged the sufficiency of the evidence for constructive possession, not the existence of probable cause. Mathews, 4 Wn. App. at 657-58. While distinguishable on this issue, Mathews nevertheless provides a clear example of strong circumstantial evidence showing constructive possession.
The court also warned that "[o]ur decision should not be construed as establishing a rule that a passenger seated in proximity to concealed narcotic drugs in an automobile is deemed to be in constructive possession of the drugs." Mathews, 4 Wn. App. at 658.
A careful reading of these cases suggests that even for establishment of probable cause, strong circumstantial evidence is required to show constructive possession of a narcotic by a vehicle occupant. Here, no other circumstantial evidence is present to link Goodlow to the two ecstasy tablets, except Goodlow's proximity, which, as a matter of law, is insufficient to show constructive possession. George, 146 Wn. App. 920-21 (citing Spruell, 57 Wn. App. at 388-89). When an officer asked Kirichkov about the ecstasy tablets, he told the police that a number of people were in his car that day, and that the tablets could have come from any one of them. Without more evidence showing either that Goodlow knew of the tablets, or that there had been no other vehicle occupants that day, Goodlow's sitting on top of the two tablets is insufficient to show constructive possession.
Citing State v. Galbert, 70 Wn. App. 721, 855 P.2d 310 (1993) and State v. Chavez, 138 Wn. App. 29, 156 P.3d 246 (2007), cases which took place in a home and a bathroom stall, respectively, Goodlow contends that the facts do not support a finding of probable cause based on constructive possession. While Goodlow's analysis of these cases is helpful, we find it unnecessary to apply them here, as the cases involving vehicle occupants and constructive possession are more on point.
Because individualized probable cause must support the arrest of each individual, the absence of any other circumstantial evidence linking Goodlow to the tablets precludes a finding of probable cause here. Grande, 164 Wn.2d at 138. Therefore, the search incident to arrest the following day was not supported by probable cause, rendering it unlawful. We reverse the conviction and remand for dismissal with prejudice.
WE CONCUR.