Facts
In 1995, Detective Steven Wilson, Jackson Police Department, and seven other officers served a search warrant at 2311 Woodlawn Street. On his approach to the house, Wilson noticed that someone was peering out the front window through a slightly parted curtain. When that person saw the police, the curtain closed very quickly.
Wilson, and three other officers proceeded to the rear of the house, and entered. As soon as he entered the house, Wilson heard a toilet flushing. From his past experience, Wilson assumed contraband was being destroyed. Wilson found and entered the bathroom.
When he entered, Daryl Naylor was jumping into the bathtub behind the partially open shower curtain and Jeff Jones was kneeling in front of the toilet. Jones was shaking a plastic bag into the toilet with his right hand, while frantically flushing the toilet with his left. Wilson identified himself as a police officer, and attempted to pull Jones away from the toilet. Wilson’s hand slipped from Jones’s shoulder, and Jones continued to try to flush the toilet and shake the bag.
Wilson finally pushed Jones away from the toilet, and Jones jumped into the bathtub with Naylor. Jones dropped the plastic bag out of a small window located inside the bathtub area. Wilson called for help, and Detective Nations entered the bathroom and helped Wilson secure Jones and Naylor. Wilson then instructed Sergeant Renfroe to go outside and retrieve the plastic bag that Jones had thrown out of the bathroom window.
Renfroe did recover the plastic bag, and Wilson identified it as the same bag that Jones had been shaking into the toilet. Wilson testified that the plastic bag appeared to contain crack cocaine which had gotten wet.
After securing Jones and Naylor in the bathroom, Wilson discovered that three other individuals had been secured by the officers who had entered the front entrance of the house. The individuals were a female, Tamika Wilson, and two males, Charles Bergess and Bill Howard.
The officers then conducted a search of the premises. Three loaded firearms were recovered from the bedroom. Unused ammunition for each of the guns was also recovered. In addition to the weapons, the officers also recovered a wallet from the bedroom closet which contained Naylor’s identification.
Detective Wilson recovered the driver’s license, social security card, and birth certificate of Charles Bergess from the bedroom dresser. Wilson testified that pocket scales were also recovered from the house. The scales recovered are common paraphernalia that narcotics users and dealers carry.
Renfroe identified the plastic bag containing white rocks (9.4 grams) that he recovered outside the bathroom window. Additionally, Renfroe identified two walkie-talkies that were recovered from the top drawer of the bedroom dresser. Two other walkie-talkies were recovered from the middle drawer of the same dresser.
Renfroe testified that the hand-held scales were recovered from atop the refrigerator in the kitchen. Renfroe also testified concerning identification found belonging to Jones. He identified a Capitol Cablevision bill addressed to Jones at 2311 Woodlawn Street. Finally, Renfroe identified a metal detector recovered from the living room, which is commonly used by sophisticated drug dealers to screen buyers for weapons or wires.
Detective Nations testified that he recovered $748.00 in cash from the pocket of Naylor. Detective Nations stated that it is common to find large sums of cash when serving warrants such as this. Detective Nations also recovered $85.00 in cash and Jones’s identification from a pair of blue jeans in the bedroom.
Vicki Griffin, Naylor’s aunt, stated she gave $750.00 to Naylor to hold for her. Griffin also testified that Naylor lived with his girlfriend, Tamika Wilson, and their two children, as well as Griffin’s brother at 2203 Peace Street.
Jeff Jones testified on his own behalf and stated that he owned the scales because he had used them to weigh jewelry and other items at his previous job in a pawn shop. Jones identified the metal detector as belonging to a friend of his who used to work for Wackenhut, and who had been staying at Jones’s house.
Jones also identified the recovered shotgun as belonging to him. He had purchased it from a pawn shop on Terry Road for his protection a couple of months before he was arrested, and it had never been shot. He testified that the gun entered into evidence did not appear the same as his gun before it was taken from his house. Jones also identified the walkie-talkies recovered in the house. He stated that he bought them at Radio Shack and that they were not used in drug trafficking. He just bought them for fun.
Jones testified that on the day of the raid, at around 12:30 p.m., he was about to take a bath. Naylor and his girlfriend, Tamika Wilson stopped by Jones’s house, and Jones asked Naylor to give him a haircut. While Naylor was cutting Jones’s hair with a pair of hair clippers, the officers entered the bathroom.
Jones testified that Naylor was never in the bathtub. He said the water in the bathtub was running, that he was dressed in his underwear, and that Naylor was fully clothed.
Naylor was convicted of possession of cocaine with intent to distribute and sentenced to 15 years. On appeal, he argued he was never in possession of any drugs. MSC agreed with Naylor and reversed the charge.
Analysis
Because Naylor was not caught in actual possession of the cocaine, but was only located in the bathroom next to Jones who had actual possession, the State was required to prove that Naylor had constructive possession.
The theory of constructive possession has been explained, in Curry v. State, 249 So. 2d 414 (Miss. 1971), as follows: There must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. It need not be actual physical possession. Constructive possession may be shown by establishing that the drug involved was subject due to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances. Id. at 416.
The theory was further defined in MSC case Hamburg v. State, 248 So. 2d 430 (Miss. 1971), that one who is the owner in possession of the premises is presumed to be in constructive possession of the articles found in or on the property possessed.
In Jones, we found that the evidence of constructive possession was insufficient where Jones was a passenger in a car in which marijuana was found. We found that his presence in the car was the only evidence connecting him to the marijuana.
In Berry v. State, 652 So. 2d 745 (Miss. 1995), we reversed and rendered Berry’s conviction for possession of cocaine where the only evidence connecting him to the cocaine was that he rode in the car in which the cocaine was located and placed the cocaine in the glove compartment at the request of the driver of the car.
In Ferrell v. State, 649 So. 2d 831 (Miss. 1995), we again reversed a conviction for possession of crack cocaine where Ferrell, who was not the owner of the car in which the drugs were found, possessed the contraband. We noted that Ferrell did have dominion and control over the car, but that because he was not the owner of the car, the State was required to establish additional incriminating circumstances in order to prove constructive possession.
No drug paraphernalia was found in the car, Ferrell was not on drugs at the time he was arrested, and his fingerprints were not found on the matchbox. He was merely seated in the car next to what by all accounts appeared to be an ordinary matchbox
In Miller v. State, 634 So. 2d 127 (Miss. 1994), we found the evidence sufficient to convict Miller of possession of cocaine. Miller was arrested by a patrol officer on two outstanding warrants. Upon doing a pat-down for weapons, the officer handcuffed Miller and placed him in the patrol car. The officer had felt no weapons but had felt what he thought was a matchbox, some keys, and some coins.
At the police station, Miller was searched, and the officer found no matchbox. He returned to his patrol car, and found under the seat a matchbox containing twelve rocks of crack cocaine. We found that the proof, as established primarily by the arresting officer’s testimony, was sufficient because Miller was the only person who had recently been in the area where the drugs were found and who had the opportunity to leave them there.
In this case, the only evidence linking Naylor to the cocaine is that he was in close proximity to it when he was found in the bathroom. The State did not prove that he lived at the house where the drugs were found, therefore the State was required to provide some competent evidence that connected Naylor to the cocaine.
The only other evidence admitted against Naylor was that his wallet was found in a closet which contained his identification, and he was in possession of $748.00 in cash. Under Mississippi law, this evidence was insufficient to prove that Naylor possessed cocaine. If Naylor did not have constructive possession of the cocaine, then he could not have had the intent to distribute the cocaine. Therefore, we must reverse and render this case and Naylor must be discharged.