actual possession established if an officer witnesses the defendant tossing an object later found to be drugs

Facts

In 2020, Vicksburg Police Department Investigator Donnie Heggins was on patrol with Investigator Mario Grady and Lieutenant Jeff Merritt. They noticed a GMC Acadia with a temporary license plate parked with its lights on in the middle of a lane of traffic on Bowman Street. Heggins turned on his blue lights, but the Acadia drove away.

While in pursuit, Heggins and Grady observed an object fly out of the Acadia’s passenger window. In response, Grady and Merritt radioed in to dispatch to report the object’s location. The Acadia finally stopped and the officers arrested Phillip Carson, the driver and only occupant of the vehicle.

Grady and another officer then returned to the marked location and within a minute or two, they found a plastic bag containing a large cookie of crack cocaine on the street (13.825 grams) in that location.

Merritt and Heggins then searched the Acadia, and in the center console they found a bag containing a smaller amount of crack cocaine broken into pieces (.298 grams) and $1,167 in cash.

At trial, Carson’s girlfriend, Kya Thomas, testified that she had rented the Acadia because her vehicle was in the shop. She testified that Carson borrowed the Acadia to go pick his dad up on the night he was stopped by police. She did not know where Carson and his father were going.

Thomas claimed that the cash found in the console of the Acadia was hers, but she denied knowledge of the cocaine found in the console. Thomas testified that during the two weeks since she had rented the Acadia, only she and Carson had access to the vehicle.

Carson likewise testified that Thomas had rented the Acadia, that the cash belonged to Thomas, and that he had never seen the cocaine found in the console. Carson claimed that he did not stop in response to the police car’s lights and sirens because he believed that the officers were trying to stop a black Tahoe that “shot down Washington Street” in front of him.

Carson testified that the driver of the Tahoe threw an object out of one of the Tahoe’s windows. Carson denied that he threw anything out of the Acadia. Carson was adamant that if he had thrown any drugs out of his window, he would have thrown all the drugs out of the window, and he would have driven much faster to escape the police.

Carson was convicted of possession of more than ten grams but less than thirty grams of cocaine, and sentenced to 20 years. On appeal, he argued he was not in possession of cocaine. MCOA affirmed.

Analysis

A. Standing

Although the Acadia was rented to Thomas, not Carson, that fact, standing alone, does not deprive Carson of standing to challenge the search. The U.S. Supreme Court in Byrd said that the mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy.

B. Traffic Stop

MSC said in Martin that officers have probable cause to initiate a traffic stop when they observe a traffic violation. Carson committing an apparent traffic violation by stopping his car in the middle of the road. Miss. Code Ann. § 63-3-907 (Rev. 2013) says, “Except where angle parking is permitted by local ordinance or usage, every vehicle stopped or parked upon a roadway where there is an adjacent curb shall be stopped or parked with the right-hand wheels of such vehicle parallel with and within twelve inches of the right-hand curb.”

The officers then had probable cause to arrest Carson for the crime of fleeing a law enforcement officer after he drove away and failed to stop his vehicle in response to blue lights and sirens. Miss. Code Ann. § 97-9-72(1) (Rev. 2020).

Finally, the officers were entitled to search the Acadia after they had retrieved the cocaine they saw thrown from the vehicle and were in the process of lawfully arresting Carson. In Gant, the U.S. Supreme Court said that a search incident to arrest can be performed on a vehicle when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.

C. Possession of drugs

MSC said in Dixon that possession of a controlled substance may be actual or constructive.

With regard to constructive possession, MSC in Curry v. State, 249 So. 2d 414 (Miss. 1971), said that there must be sufficient facts to warrant a finding that the defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. Constructive possession may be shown by establishing that the drug involved was subject to his dominion or control. Proximity is usually an essential element, but by itself it is not adequate in the absence of other incriminating circumstances.

The cocaine found on the street weighed 13.825 grams, while the cocaine in the console weighed 0.298 grams. Thus, it is unnecessary for us to address directly the smaller amount of cocaine found in the center console of the Acadia.

We said in Dampeer and Lee that actual possession can be established if an officer witnesses the defendant tossing an object later found to be drugs.

Factually, this case is very similar to Lee. In Lee, police initiated a traffic stop, but the defendant ran a stop sign and fled. While in pursuit, the officers observed the defendant toss something out the window of his car before finally stopping his car. The officers then returned to that area and found a bag of marijuana and a chapstick vial which contained thirteen rocks of crack cocaine. We concluded that a reasonable fair-minded juror could find the testimony presented to be incriminating beyond a reasonable doubt.

In this case, Investigator Heggins and Investigator Grady both testified that they observed Carson throw an object out of the window of the Acadia, they noted the location in which the objection was thrown, and Grady found the bag of crack cocaine in that location.

Grady specifically testified that he personally observed the driver throw a small plastic bag out of the front passenger window of the Acadia. He further testified that he discovered the plastic bag with a large cookie of crack cocaine in the same area where it was thrown out of the window. As in Lee, we conclude that the conviction must be affirmed because a reasonable fair-minded juror could find the testimony presented to be incriminating beyond a reasonable doubt.

 

https://courts.ms.gov/images/Opinions/CO161396.pdf